Waru v The King
[2025] NZCA 294
•3 July 2025 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA36/2025 |
| BETWEEN | BRIAN HERBERT WARU |
| AND | THE KING |
| Hearing: | 15 May 2025 |
Court: | Thomas, Fitzgerald and Eaton JJ |
Counsel: | A T Tupuola for Appellant |
Judgment: | 3 July 2025 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of two years and six months’ imprisonment on the charge of ill‑treatment of a child is set aside and a sentence of two years and two months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Table of contents
Introduction [1]
The sentencing decision [4]
Was the starting point on the ill-treatment charge reached following an erroneous factual and legal analysis? [22]
The Crown case [24]
The summing up [28]
The charge of ill-treatment of a child [31]
Not guilty verdicts [40]
The Judge’s approach to the facts [55]
Were there factual errors in sentencing on the ill-treatment charge? [61]
What was an appropriate starting point? [68]
What adjustments were required in respect of personal aggravating and mitigating circumstances? [77]
Result [82]
Introduction
Brian Waru was found guilty by a jury of one charge of ill-treatment of a child and one representative charge of supplying cannabis to a person under 18 years old.[1] The victim of both charges was a girl under 16 years old with whom he lived at the time in a familial relationship. He was acquitted of three charges alleging indecency against her and four charges alleging violence against her. Mr Waru appeals his sentence of two years and six months’ imprisonment as manifestly excessive.[2]
[1]Crimes Act 1961, s 195; and Misuse of Drugs Act 1975, s 6(1)(d). At the time of the offending, the maximum penalty for ill-treatment of a child was five years’ imprisonment rather than the current maximum penalty of ten years’ imprisonment.
[2]R v Waru [2024] NZDC 31583 [sentencing notes] at [50].
The grounds of appeal are:
(a)the starting point for each charge was reached following an erroneous factual and legal analysis;
(b)the cumulative starting point was too high;
(c)the uplift for prior convictions of four months was disproportionately high;
(d)the allowances of 20 per cent failed to recognise Mr Waru’s fulltime care of his two disabled children, offers to make amends and that his historic offending was low-level; and
(e)the totality reduction of six months’ imprisonment was insufficient and disproportionate, as were the lack of reduction for cultural factors, significant time on bail and other personal background factors.
In Ms Tupuola’s submission, for Mr Waru, the errors were “grave”, resulting in a manifestly excessive sentence when it should have been a non-custodial one.
The sentencing decision
Judge Rzepecky began by noting that, as trial Judge, he was entitled to make his own findings of fact if the evidence supported it.[3]
[3]At [2].
The Judge described the offending as occurring between the time Mr Waru began a relationship with the victim’s mother, when the victim was around six years old, and when the victim left home, when she turned 16.[4]
[4]At [3].
The Judge said the cannabis offending began when the victim was at intermediate school, around 11 or 12 years old.[5] Mr Waru introduced her to cannabis and “would get her stoned-on cannabis”.[6] The Judge accepted the victim’s evidence that Mr Waru supplied cannabis to her regularly, including cannabis plant and oil, and that he taught her to use a bong and how to “spot”.[7] The victim said Mr Waru had a rule to see how many “spots” she could take before she wiped out and described one Christmas Day when she spent most of her time on the couch.[8] On school holidays, Mr Waru would wake the victim in a process called “wake and bake”.[9] When she was asleep on the couch, Mr Waru would wake her holding a “bucket bong” which he would expect her to consume.[10]
[5]At [4].
[6]At [4].
[7]At [4].
[8]At [4].
[9]At [6].
[10]At [6].
Although he was not charged in connection with it, the Judge regarded it as an aggravating factor that Mr Waru supplied cannabis to two of the victim’s friends when they visited her at home.[11] The friends had both given evidence at trial.[12]
[11]At [5].
[12]At [5].
The Judge rejected Mr Waru’s evidence that it was the victim’s mother who was responsible for allowing the victim to smoke cannabis and for its supply.[13]
[13]At [7].
In relation to the ill-treatment charge, the Judge noted the victim’s evidence that this occurred throughout the period Mr Waru lived with the victim’s mother.[14] The victim described living with Mr Waru as like walking on eggshells, never knowing how he would react.[15] The Judge accepted the victim’s evidence of:[16]
(a)Regular violence by Mr Waru against her mother, which she witnessed, including punching, pulling hair, head butting, kicking and throwing things.
(b)Mr Waru punching holes in the wall next to her head, chasing her and her sister, and doing anything to make them feel intimidated.
(c)The way Mr Waru treated the family pets in order to upset her and her sister, which the Judge described as one of the most serious allegations: “smash[ing]” their family dog with fishing rods, kicking and severely beating them. When the dog had puppies, Mr Waru lined up her and her sister on the verandah and then cut off the puppies’ heads so they were forced to watch. On another occasion, he hung the dog Patch to a tree using a rope. He told her that he had shot her personal pet dog with two bullets.
(d)Mr Waru being verbally abusive to her, her mother and sister.
(e)Mr Waru attempting to control what she wore as she got older, by not allowing her to wear skirts. To some extent, Mr Waru stopped her socialising.
(f)Being constantly on guard and feeling like she always had to protect her mother.
[14]At [8].
[15]At [8].
[16]At [10]–[15].
The Judge did not accept that the victim had embellished her evidence, saying she was not really shaken on her story.[17] He considered it likely the jury was similarly persuaded.[18] He referred to the victim impact statement and that she had been seriously affected by the offending.[19]
[17]At [15].
[18]At [15].
[19]At [23].
The Judge took the ill-treatment charge as the lead offence, considering that it had the most impact on the victim.[20] He accepted Mr Waru did not physically abuse the victim but said his behaviour over a significant period covered a lot of her childhood and early teens and, in the absence of physical abuse, caused prolonged emotional abuse.[21] He regarded the offending as serious and possibly comparable in culpability to R v Mead (discussed below).[22]
[20]At [27].
[21]At [31].
[22]At [31], citing R v Mead [2002] 1 NZLR 594 (CA).
The Judge identified the aggravating factors as, first, the extensive impact on the victim.[23] Secondly, her vulnerability as a victim, given her age at the time, and breach of trust, given Mr Waru’s role in the family.[24] Thirdly, the nature of the offending was abhorrent, with violence and verbal abuse used as a means of control.[25] He considered the low point as the killing of the victim’s pet and forcing her and her sister to watch while he “brutally dispatched” the puppies.[26] Fourthly, the extent of the offending was substantial because it spanned a 10-year period, accounting for a large portion of the victim’s childhood.[27] Lastly, he regarded the behaviour as inflicting serious psychological abuse on the victim over a period of 10 years.[28]
[23]At [32].
[24]At [33].
[25]At [33].
[26]At [33].
[27]At [34].
[28]At [35].
The Judge concluded the seriousness of the offending justified a starting point of two years’ imprisonment.[29]
[29]At [35].
The Judge addressed the cannabis offending separately, deciding a starting point of 18 months’ imprisonment was appropriate.[30] He regarded the supply of a drug to an 11 or 12 year old with active encouragement to use it and instructions on how to do so as a gross breach of trust as a parent and at the most serious level because of the vulnerability associated with her young age.[31]
[30]At [36].
[31]At [36].
That took the Judge to a total starting point of three and a half years’ imprisonment.[32]
[32]At [36].
The Judge uplifted the starting point by 10 per cent for prior offending.[33] He was not prepared to give a discount for remorse.[34] He noted Mr Waru continued to deny responsibility for ill-treatment as reported in the presentence report and continued to lay most of the blame for the cannabis offending on the victim’s mother.[35] He acknowledged that Mr Waru was willing to undertake some form of restorative justice but expressed reservations about how that would have worked, given Mr Waru’s continued denial of the charges.[36] He did, however, make a five per cent allowance because of what he described as the wider view Mr Waru was prepared to take “in terms of the kaupapa of [his] iwi and whānau in terms of restoring the mana of those that have been offended against”.[37]
[33]At [37].
[34]At [38].
[35]At [21] and [38].
[36]At [39].
[37]At [39].
No discount was available for time on bail, given Mr Waru was not on electronic monitoring and had only a travel restriction.[38] He noted that the offending occurred from time to time when Mr Waru was subject to prison release conditions or supervision for other offending but declined to uplift the sentence in that respect.[39]
[38]At [40].
[39]At [40].
The Judge made an allowance of 10 per cent because of Mr Waru’s two children and the fact a custodial sentence would involve separation from them, impacting them and making the sentence harder for Mr Waru.[40] He made a further allowance of five per cent, given his view that Mr Waru’s age would make a custodial sentence more difficult and that the sentence did not immediately follow the offending but rather the offending was historic.[41]
[40]At [41].
[41]At [42].
The Judge referred to two speakers who addressed cultural factors but did not regard what he heard as anything significant, saying there was no linkage with the offending in any event.[42] He said that the nature and gravity of the offending significantly diminished any discount that would have been available had personal cultural circumstances warranted it.[43]
[42]At [43].
[43]At [46].
That exercise took the Judge to an end sentence of three years and one month’s imprisonment.[44] The Judge then considered totality.[45] He noted the need to denounce and discourage the ill-treatment of children and the supply of cannabis to them.[46] He noted Mr Waru appeared to have ceased drug use and was looking after his children.[47]
[44]At [47].
[45]At [47].
[46]At [47].
[47]At [48].
Taking all those matters into account, the Judge expressed himself satisfied that in totality a two and a half year sentence of imprisonment was justified.[48] This was imposed on the ill-treatment charge, with a concurrent sentence of 18 months’ imprisonment on the cannabis charge.[49]
Was the starting point on the ill-treatment charge reached following an erroneous factual and legal analysis?
[48]At [49].
[49]At [49].
Ms Tupuola submitted that the Judge erred in fact by finding that the period of ill-treatment covered nearly 10 years and in accepting the victim’s evidence on this charge. In her submission, the jury need not have been satisfied of either the matters alleged by the Crown as supporting the charge or the period of time covered by the charge. She emphasised the jury had to be unanimous on one of the acts of alleged ill‑treatment only and there was no way of knowing the act or acts on which the jury relied in reaching its decision. Prior to sentencing, Ms Tupuola had alerted the Crown and the Court to her concerns with the victim impact statement, saying it contained matters which did not form part of the evidence at trial and were inadmissible. She contended that the Judge erred by basing his factual findings on what was in the victim impact statement.
Because of the nature of the charge, we need to spend some time analysing it and how it was presented to the jury.
The Crown case
The ill-treatment charge was framed as follows:
The said Crown Solicitor further charges that BRIAN HERBERT WARU between the 18th day of November 1995 and the 17th day of November 2005 in Northland having the control or charge of [the victim] a child under 16 years wilfully ill-treated the child in a manner likely to cause the child unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability.
In its closing address to the jury, the Crown relied on six factors to establish ill-treatment:
(a)punching holes in the wall;
(b)general violence to animals;
(c)hanging “Patch” from a tree;
(d)axing the heads off puppies;
(e)telling the victim he killed her dog; and
(f)verbal threats.
The jury was given a sheet referring to the six factors and page references from the victim’s evidential video interview (EVI) containing her evidence about them.
The Crown closed on the basis that the ill-treatment charge related to Mr Waru’s overall conduct towards the victim from when she was a young girl until she left home at 16. The Crown prosecutor emphasised that the offending relevant to this charge was not the same as the other charges, it was different behaviour. In the course of discussing the six factors, the Crown submitted to the jury that there did not appear to be any explanation other than that the behaviour was intended to intimidate the victim and cause her suffering.
The summing up
The question trail in respect of the ill-treatment charge read:[50]
[50]Ms Tupuola confirmed that the question trail as presented to the jury had the time period 2000–2005 in respect of the ill-treatment charge.
1. Are you sure that between 18 November 2000 and 17 November 2005 [the victim] was under the age of 16?
If “no” find Mr Waru “not guilty”.
If “yes” go to question 2.
2. Are you sure that [the victim] was in the control or charge of Mr Waru?
“control or charge” means responsibility for, or practical care or control of, a child. This may include shared care.
If “no” find Mr Waru “not guilty”.
If “yes” go to question 3.
3.Are you sure that Mr Waru subjected [the victim] to ill-treatment?
“Ill-treatment” means to treat badly.
If “no” find Mr Waru “not guilty”.
If “yes” go to question 4.
4. Are you sure that the ill-treatment was likely to cause unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability to [the victim]?
“Likely” means that there is a real and substantial risk that unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability. It is not necessary that unnecessary suffering, actual bodily harm, injury to health or any mental disorder or disability actually occurs.
If “no” find Mr Waru “not guilty”.
If “yes” go to question 5.
5. Are you sure that Mr Waru acted wilfully when he ill-treated [the victim]?
“Wilfully” means that Mr Waru deliberately and intentionally ill‑treated [the victim] and that he had a conscious appreciation that the ill-treatment was likely to cause unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability.
If “no” find Mr Waru “not guilty”.
If “yes” find Mr Waru “guilty”.
The Judge’s directions to the jury in relation to the ill-treatment charge were as follows:
[46] That leads me to charge 9, cruelty to a child. Once again age is a factor and you need to decide whether or not between those dates [the victim] was under the age of 16 which should not give you any difficulty. Similarly, whether or not [the victim] was in the control or charge of Mr Waru, that does not seem to be in any sort of dispute. …
[47] What is significant is the important issue is 3 because Mr Waru denies any ill-treatment and what the Crown has to prove is that Mr Waru did subject [the victim] to ill-treatment. “Ill-treatment” means to treat badly. The Crown here relies on a number of events to establish that Mr Waru ill-treated [the victim] and these have been referred to by Mr Stevens. The main ones are set out in his evidential reference schedule: Mr Waru punching holes in the walls near [the victim]’s head, general incidents of violence to dogs, hanging the dog Patch off a tree, chopping the heads off puppies with an axe, telling [the victim] that he had shot her dog Barney in the eye and the head and continuous verbal threats, including using abusive language.
[48] The starting point here is to consider the incidents the Crown relies upon because you must decide whether or not any of these actually happened. The Crown case is, of course, that you can believe [the victim] and rely on her evidence, and the defence case is that none of these things happened, and once again even in relation to this charge that [the victim] is completely unreliable and you should not believe her evidence. Furthermore, Mr Waru says that he is supported by his witnesses who have said none of this ever happened while they were there and you should consider that to support him when he says that none of it in fact occurred.
[49] Secondly, you can rely on what you are satisfied happened to decide if there is sufficient evidence to be sure that there was ill-treatment. You need to ask yourself: “Do these incidents individually or collectively amount to a course of conduct by Mr Waru which amounts to ill-treatment of [the victim]?” So, firstly, you would have to decide that one or all of the incidents actually happened and then you take that evidence and decide whether or not the Crown has proven beyond reasonable doubt that has made you sure that there was ill-treatment.
[50] In considering the element, you do not have to all agree on the same incidents. Some of you may be persuaded by the allegations of general incidents of violence to dogs in front of [the victim] or others may be persuaded by Mr Waru punching holes in the walls and verbally threatening the children. What you all do have to agree on though is that there was ill‑treatment and that is an element of the offence which the Crown must prove. You must be sure that there was ill-treatment before you can answer “yes” to this question.
The Judge then explained how the jury should approach the remaining questions 4 and 5.
The charge of ill-treatment of a child
The charge of ill-treatment of a child is a somewhat unusual one. There were no particulars provided in the charge list and it was not laid as a representative charge. This is because, as explained in R v Mead, the very nature of the charge is that it will usually allege a course of conduct rather than single acts of cruelty.[51] Mr Mead was the step-father of three children aged between 7 and 15.[52] For a period of up to five months, he subjected the children to acts of ill‑treatment.[53] Mr Mead ran a “boot camp” regime involving various forms of physical and mental abuse.[54] Particulars had been provided by the Crown as including “excessive and menial domestic chores, deprivation of food, cold baths, verbal abuse, force-feeding of cold and rotten food and hitting”.[55] Another charge related to a specific incident involving the force‑feeding of powdered cloves to one of the children.[56]
[51]R v Mead, above n 22, at [74] and [106].
[52]At [56].
[53]At [50].
[54]At [52] and [56].
[55]At [52].
[56]At [53] and [58].
The issue on appeal to this Court in Mead was whether the Judge erred in not telling the jury unanimity was required as to the proof of the different factual bases put forward by the Crown to support the allegations of ill-treatment.[57] The Judge’s direction had authorised the jury to reach a unanimous conclusion on guilt without any shared basis about the conduct relied on as amounting to ill-treatment likely to cause unnecessary suffering.[58]
[57]At [7].
[58]At [13].
The majority dismissed the appeal, Edmund Thomas J saying:
[70] What is equally plain from a reading of the section is that the form which the ill-treatment might take is not an ingredient of the offence. Of course, the Crown must establish an evidential basis for the ill-treatment. The jury are required to then evaluate or assess whether the accused’s treatment of the child amounts to ill-treatment having regard to the totality of the evidence and applying the standards prevalent in the community. It is on this basis that the jury must be satisfied beyond reasonable doubt that the child was wilfully ill-treated in a manner likely to cause him or her unnecessary suffering.
[71] The fact an evaluation is required as to whether the treatment amounts to ill-treatment for the purposes of s 195 tends to set this type of offence apart from those where an accused’s act or omission constitutes, with the necessary mens rea, the actual offence. Thus, in cases of, say, assault, the Crown must establish that the accused applied force to the person of another without that person’s consent. No evaluation is required. The action of the accused is either an assault or it is not. In cases of cruelty to a child, however, the Crown must establish the particular incident or course of conduct which it alleges amounts to ill-treatment. It is the jury’s assessment of that evidence which will determine whether or not the accused’s conduct amounts to ill-treatment. It is inevitable that in carrying out that evaluation individual jurors will focus on different aspects of the accused’s conduct.
Edmund Thomas J described it as “an egregious error” to seek to elevate the form the ill-treatment might take into an ingredient of the offence, saying that principle was not altered by the fact the evidence might disclose a number of forms or incidents of ill-treatment.[59] He said: “The core of the offence lies in the cruelty, not the particular form it may have taken.”[60]
[59]At [72]–[73].
[60]At [73].
Edmund Thomas J did note that ill-treatment in the form of a single isolated act of cruelty was more likely to be the subject of a separate charge but for the most part, ill‑treatment would comprise a course of conduct on the part of the parent or guardian.[61] Some incidents would be less serious than others and not necessarily amount to ill-treatment but the task of the jury was to consider whether the course of conduct or accumulation of incidents constituted wilful ill-treatment.[62] He said there was one crime notwithstanding there may have been a number of incidents.[63]
[61]At [74].
[62]At [74].
[63]At [74].
Elias CJ dissented, concluding that it was fundamental the jury should be unanimous as to the essential ingredients of the offence.[64] In her view, the statutory elements had to be anchored to the facts relied on by the prosecution as the basis of liability.[65] She considered the jury needed to agree on the factual basis on which it found the accused guilty, not just on a conclusion based on the statutory criteria for the offence.[66]
[64]At [14].
[65]At [15].
[66]At [15].
In our view, prosecutors need to implement the guidance from Mead with some care. At the very least, the Crown must identify the behaviour alleged to comprise or have contributed to the ill-treatment. As Edmund Thomas J pointed out, ill-treatment in the form of a single isolated act of cruelty is more likely to be the subject of a separate charge. It may be that at times it is difficult to particularise the charge other than in a general way because, for example, the allegation is of creating a climate of fear by words and atmosphere. But some detail is required.
In light of those observations, we have some reservations about the charge and the way this case was presented to the jury (noting this is not a conviction appeal). The Crown provided a document to the jury listing the six matters alleged to constitute ill-treatment. Those events were varied and the charge could reasonably have been separated into one involving cruelty to dogs and another involving intimidating, violent behaviour, whether by action or threats. That would have been a more helpful way of presenting the charges and would certainly have been of assistance to the Judge when it came to sentencing.
The problems in this case were exacerbated by the fact Mr Waru was acquitted on a number of charges.
Not guilty verdicts
Although the Judge in a jury trial is effectively the thirteenth fact-finder and, in sentencing, is entitled to reach their own view of the facts, that view must be supported by the evidence and must not be inconsistent with the jury’s verdicts.[67]
[67]R v Connelly [2008] NZCA 550 at [14]; and B (CA58/2016) v R [2016] NZCA 432 at [76].
Mr Waru was acquitted of a number of charges which, on their face, appear relatively serious: three indecency charges, one a representative charge of indecency with a girl under 12 by touching her bottom; one a representative charge alleging the same with a girl then aged between 12 and 16;[68] and one charge alleging a specific indecency with a girl under 12 by touching her leg. Mr Waru was also acquitted on four violence charges: two relating to specific incidents when he allegedly chased the victim with a knife or screwdriver, on one occasion around a car and on the other, when she hid in a sleepout; and two representative charges alleging assault with a weapon, one with a knife and the other an unspecified weapon, being occasions other than those covered by the specific charges.
[68]Acquitted by majority verdict.
To ensure there was no inconsistency between the not guilty verdicts and the Judge’s factual findings, and because the not guilty verdicts might suggest the jury doubted the victim’s credibility, we have considered the evidence at trial.
The victim’s EVI was played as part of her evidence-in-chief.
The evidence on the indecency charges was that, several times a day, when she walked past him, Mr Waru would grab or slap the victim’s bottom, followed up with “yeah slap that ass”. She said he would do the same thing to her mother. The victim said she would just keep walking because she did not like it and it made her feel uncomfortable. She said there was a period of time when she thought that maybe that was just what happens but other times she remembered feeling “yuck”. In her evidence at trial, the victim said she thought the slapping of her bottom was a playful thing.
The victim also described an incident when there was a party and Mr Waru had given her alcohol and got her stoned. He then took her for a drive which she said was not uncommon because he “liked driving”. They parked and he reached over and “went to put his hand up, it was either my dress or my skirt and I just gasped”. She said at that moment, Mr Waru realised she would not go along with it, so he stopped and drove away. She said it was very quick but she could remember afterwards imagining him putting his hands into her underpants. She did not, however, say he did so. She said she knew exactly what he was intending on doing and she thought he was testing the waters.
Mr Waru gave evidence. He denied the allegations of indecent assault. Mr Waru agreed he would touch the victim’s backside but said there was nothing sexual involved, it was encouragement just as a rugby player smacks other players in the team. He said he did it as encouragement for the victim’s training.
We find it unsurprising that the jury was not sure of the essential elements of the charges. The evidence on the charge of touching the victim’s leg was unclear and confusing. And in respect of touching her bottom, there was a real question as to whether the evidence supported a finding of indecency.
The four charges alleging assault with a weapon arose out the victim’s allegations in her EVI that, when she was around six to around 14, Mr Waru “would chase us with knives um, screwdrivers”. She described one occasion when Mr Waru was angry and chased her with a screwdriver. She hid in a sleepout and he smashed the door down. She cannot remember whether he just left or whether it was one of the times he punched holes next to her head. She referred to another time when he chased her and her sister around a car but could not catch them and then smashed the car windows.
When she gave her evidence at trial, the victim said that, when Mr Waru chased her to the sleepout, he was not holding a screwdriver. However, in connection with her allegations Mr Waru chased her and her sister with a screwdriver, she commented that she remembered her sister asking her whether she remembered the time Mr Waru chased them with the screwdriver. She then said it happened on occasions. In cross‑examination, the victim said she was “not too sure” about which incidents involved being chased with a knife and which a screwdriver. She then said a little later that, during the interview, she should probably have told the interviewer that she did not know, saying, “it’s just such a grey area … I know he had a, had a weapon … I know that he either had a knife or a screwdriver in his hand when he was chasing us around the car”. She also described an occasion when she walked in on Mr Waru who was holding a screwdriver to her mother’s throat.
The victim’s grandmother gave evidence and was referred to a diary entry she made when the victim was 12 years old. The victim’s mother rang her to ask if her partner could pick up the girls because Mr Waru was chasing them and she was scared Mr Waru would hurt them.[69] In evidence, the victim’s grandmother said she was told Mr Waru was chasing them with a machete and they hid under a bridge. However, her diary entry made no mention of a weapon.
[69]There was no evidence from either the victim’s mother or sister as both are deceased.
Another witness first met the victim in the third form in high school. She recalled a time when she and the victim were both in their late teens and the victim told her Mr Waru used to beat up her mother a lot. She told her that on one occasion her mother was bleeding and Mr Waru had a knife and the victim threw herself over her mother to stop him from doing anything further.
Another friend, H, met the victim at school when the victim was around 13 or 14. The victim would talk about not being happy with lots of violence going on in the home.
When Mr Waru gave evidence, he described the household as full of fun and laughter 80 per cent of the time. He denied chasing the victim or her sister around the house with a screwdriver or a knife. He said there was nothing physical but accepted there were verbal disagreements involving yelling and screaming. He acknowledged swearing at the victim. Mr Waru denied physically assaulting the victim’s mother although accepted the police had attended the property three or four times.
All four charges alleging violence relied on the credibility of the victim. There was corroborating evidence from the victim’s grandmother and the victim’s two friends but it did not reach the level of supporting allegations of assaulting the victim with a weapon. It would appear that the jury was not satisfied with the specifics of the allegations but was prepared to accept there was a general environment of fear and intimidation in the household supporting the ill-treatment charge. But this put the Judge in a somewhat difficult situation when it came to sentencing. The Judge needed to ensure his sentencing was consistent with those not guilty verdicts.
The Judge’s approach to the facts
The Judge did not explain why he considered the victim’s allegations of ill‑treatment were proved in relation to each of the six factors relied on by the Crown. He said he accepted the victim’s evidence but included the fact the victim witnessed Mr Waru’s violence towards the victim’s mother.[70] That was not one of the six factors relied on by the Crown to support the charge and indeed it could not have been. The charge requires the deliberate ill-treatment of a child and an appreciation it will likely cause the child unnecessary suffering. Any violence against the victim’s mother was obviously directed at the victim’s mother — not the victim herself. In contrast, the violence against animals was, on the evidence, intended to cause suffering to the victim herself.
[70]Sentencing notes, above n 2, at [9] and [15].
In Ms Tupuola’s submission, there was no proof of holes in the wall and the evidence that Mr Waru punched holes in the wall relied solely on the victim. She suggested the Judge’s finding that this occurred would be inconsistent with the jury’s verdicts. We do not accept that submission. The criticisms made by Ms Tupuola were matters addressed at trial. The victim gave an example of an incident that stood out to her when she and her sister were up against the wall in the lounge and Mr Waru took it in turns punching the wall next to their heads. In this context, the victim talked about constant intimidation, being verbally abused and threatened. There was a clear evidential basis whereby the Judge could have been satisfied of this offending and it was not reliant on a connection with the alleged assaults with a weapon, of which Mr Waru was acquitted. The Judge acknowledged that Mr Waru had not been physically violent towards the victim.[71]
[71]At [31].
Ms Tupuola also challenged the Judge’s acceptance of the victim’s evidence about the various incidents of cruelty to animals. She referred, for example, to the fact that the victim did not say she had seen Mr Waru shoot the victim’s dog. But that was not the allegation. The allegation was that he told her he had done so. Ms Tupuola referred to evidence that the victim’s dog had to be put down and this was done by a neighbour. That would not preclude Mr Waru telling the victim that he had killed her dog in an act of ill-treatment of the victim. The victim described the occasion when she was about 12 and Mr Waru asked whether she knew he had killed her dog. He asked whether her mother had told her that and then said he had used two bullets because the first one did not kill the dog. One got him in the eye and the other “[blew] his fucken brains out”.
Similarly, there were challenges to the victim’s evidence about being made to watch puppies being beheaded, with Ms Tupuola questioning whether the victim had in fact seen it or whether she was confusing it with the way in which pigs were slaughtered. While the victim said it was a really vague memory, she did say she recalled the axe coming up high with the puppy being on the chopping block on the back lawn. She said she and her sister spoke about it a lot afterwards. There was extensive challenge to that evidence at trial but the Judge was entitled to accept the victim’s evidence.
The same applies to the allegation that Mr Waru had hung Patch from a tree. The victim said Mr Waru left him hanging for a while. She said it was a very vague memory and Patch survived.
The victims’ evidence in this context related to her assertion that what Mr Waru did to family pets was to try and control or punish her. The victim’s friend, H, remembered the victim telling her that sometimes things would happen to the dogs, almost as a punishment to her. H described the environment at the house as unpredictable and heightened, never knowing if an argument was going to start or something was going to go wrong.
Were there factual errors in sentencing on the ill-treatment charge?
There were some matters which the Judge took into account when setting the starting point on the ill-treatment charge which were in error.
The ill-treatment charge as laid covered the 10-year period referred to by the Judge in sentencing, from 18 November 1995 to 17 November 2005.[72] However, the question trail referred to a shorter period of 18 November 2000 to 17 November 2005. There is no explanation as to why this happened and it was likely a simple error, but the question trail was not corrected. Furthermore, the Judge did not refer to the fact that the victim’s grandmother gave evidence the victim lived with her for a period of around 18 months when she was a teenager. Less importantly, there was also evidence that Mr Waru was away for periods working at sea.
[72]At [3]. The Judge referred to the period as ending when the victim “turned 16 in 2006”, but the victim actually turned 16 on 18 November 2005.
The time period in the question trail is a problem. In directing the jury on the charge of ill-treatment, the Judge referred the jury to “those dates”, being the shorter time period in the question trail.[73] Although the jury would likely have been given the Charge List, the only written material discussed by the judge in his summing up was the question trail which he described as an agenda to focus the jury’s deliberations. The jury also had the Crown’s list of evidential references, which did not specify the time period for the charge. This means that the jury addressed the charge on the basis of needing to be sure the offending occurred over a period of five years as opposed to the 10 years taken into account by the Judge in sentencing. In these circumstances, we must consider the sentence appeal on the basis of the shorter period, as very fairly conceded by Mr Auld for the Crown.
[73]See [29] above.
The starting point took into account matters inconsistent with the way the ill‑treatment charge was presented to the jury:
(a)The time period set out in the question trail covered the victim’s teenage years rather than her early childhood. In assessing aggravating factors, the Judge referred to the victim’s vulnerability, given her age at the time, noting Mr Waru came into the family’s life when she was only six. He considered the offending spanned a large proportion of the victim’s childhood.[74]
(b)The Judge included the victim’s allegation she had repeatedly witnessed Mr Waru’s “serious” violence towards her mother, noting the victim constantly feared for her own life and the lives of her mother and sister.[75]
(c)The Judge referred to Mr Waru controlling what the victim wore and that he stopped her socialising.[76]
(d)The Judge took into account that Mr Waru had threatened the victim with weapons.[77] That is perhaps the most significant error because the Crown relied on verbal threats only in respect of the ill-treatment charge. Mr Waru was acquitted of the charges alleging he chased the victim with weapons.
[74]Sentencing notes, above n 2, at [33]–[34].
[75]At [35].
[76]At [12]–[13] and [35].
[77]At [35].
Notably, the items referred to in (b) to (d) above were not included in the document the Crown gave to the jury listing the matters relevant to the ill-treatment charge. They were not referred to in the Crown’s closing address when the prosecutor discussed the ill-treatment charge. They were not referred to by the Judge when he summed up to the jury on the ill-treatment charge.
All these matters were, however, specifically taken into account by the Judge when arriving at his starting point of two years’ imprisonment on the ill-treatment charge.[78]
[78]At [35].
We are therefore satisfied there was a material error in sentencing. That means we need to consider whether a different sentence should be imposed.[79]
What was an appropriate starting point?
[79]Criminal Procedure Act 2011, ss 250(2) and 251.
At sentencing, the Crown had submitted an appropriate starting point on the ill-treatment charge was three years to three years and six months’ imprisonment and 18 months to two years’ imprisonment on the representative charge of supplying cannabis. On a totality basis, the Crown submitted the supply charge should attract an uplift of six to 12 months. The Crown submitted there should be an uplift of three months to reflect aggravating features personal to the defendant.
Accepting there was actual physical violence in Mead, the Crown submitted that Mr Waru’s offending could be viewed as more serious given it occurred across an eight-year period as opposed to five months in Mead.[80] The Crown also submitted that the victim was “exposed to regular violence against her mother”, cruelty and violence towards animals and threatened violence towards her, including the punching of holes in the wall next to her head, all in the context of a volatile home environment.
[80]R v Mead, above n 22, at [50].
In this context, we note that the Crown attached the prosecution summary of facts to its sentencing submissions, directing the Judge to those facts. However, that summary, and the Crown’s sentencing submissions, contained factual allegations not relied on by the Crown at trial on the ill-treatment charge (including an allegation of Mr Waru setting his pit bull dogs on the victim and her sister). We discourage the Crown basing its sentencing submissions on the summary of facts, which is usually an early document simply setting out the Crown’s allegations of what happened. The Crown’s sentencing submissions should focus on the allegations presented at trial and those factual findings that are consistent with the jury’s verdicts.
The cases referred to by the Crown involved sentencing when the maximum penalty had been increased to 10 years’ imprisonment.[81]
[81]R v MacDonald [2018] NZDC 1314; and Tule v R [2024] NZHC 2194, where a starting point of three years’ imprisonment was upheld in respect of one incident involving Mr Tule asking his 11‑year-old son to cut off his head with a machete. He gave his son a machete, he knelt over a basket and his son held the machete to the back of his head.
Ms Tupuola had submitted that a starting point in the region of 15 to 18 months’ imprisonment was appropriate for the ill-treatment charge, with an uplift of six months for the representative cannabis supply charge. Mr Waru’s breach of trust, the victim’s vulnerability and the long-term psychological effects on her were accepted.
The Judge correctly identified the aggravating factors of the offending, although those factors need to be tempered by removing reference to the matters which were not the subject of the charge as discussed at [64] above.
Comparisons with other cases are extremely difficult, given the variety of offending which can be included in a charge of ill-treatment. In Mead, Mr Mead was sentenced to two and a half years’ imprisonment (the starting point was not specified).[82] That sentence included one charge of assault with intent to injure in respect of Mr Mead punching the elder son in the head.[83] The period of the offending was up to five months and involved physical violence.[84]
[82]R v Mead, above n 22, at [54].
[83]At [54].
[84]At [50] and [52].
It can be fairly said that Mr Waru engendered an environment of violence (by punching holes in the wall), verbal abuse and intimidation in the household, significantly exacerbated by what he did (or told the victim he did) to animals over an extended period of the victim’s early teen years. We consider a starting point of 18 months’ imprisonment properly reflects the nature and seriousness of the offending and Mr Waru’s culpability.
The supply of cannabis to the victim could have been taken as the lead charge. It appears there was no dispute that cannabis was a consistent feature of life in the family home. The offending covered a four-year period. Even taking into account the time when the victim lived with her grandmother and when Mr Waru was working at sea, we regard the offending as particularly egregious. We note that Mr Waru supplied cannabis to two of the victim’s friends and faced no charges in that regard. We do not consider, taken on its own, a starting point of 18 months’ imprisonment to be out of range.[85] But by way of an increase to the starting point for the totality of offending, we consider an uplift of 12 months appropriate, resulting in an overall starting point of two years and six months’ imprisonment.
What adjustments were required in respect of personal aggravating and mitigating circumstances?
[85]Compare Arnott v R [2010] NZCA 444 at [20].
A four-month uplift to reflect prior convictions could be considered exceeding the top end, given Mr Waru’s more recent convictions for possession of cannabis relating to offending between 2002 and 2006 were dealt with by fines. Prior to that, however, Mr Waru was sentenced to six months’ imprisonment in 2002 for cultivating cannabis and producing cannabis oil. His criminal history also includes violent offending, most recently convictions in 2015 (post the index offending) for assault with intent to injure and threatening to kill, which resulted in a term of imprisonment of four months. Notably, those charges were in a family violence context and, to that extent, can be considered relevant to the offending at issue before us. We consider an uplift of two months justified.
The Judge made allowances of 20 per cent in respect of personal mitigating factors: 10 per cent in respect of dependent children and five per cent for each of restorative justice efforts and age.[86] We consider the last two of those adjustments generous. An offer to engage in some form of restorative justice does not in and of itself entitle an offender to a discount, particularly when the presentence report does not indicate that Mr Waru was remorseful. Mr Waru is in his mid-fifties. The fact a sentence does not immediately follow historic offending does not, of itself, entitle an offender to a discount.
[86]Sentencing notes, above n 2, at [38]–[46].
We agree with the Judge that Mr Waru’s time on bail and other background factors do not warrant any allowance.
There was evidence of Mr Waru’s dependent children, both of whom have health difficulties. His daughter is 15 and suffers from muscular atrophy. His son is around 10 and is partially deaf. We have seen correspondence from his son and note in particular the burden assumed by his son’s caregiver, who has her own child with special needs. The care arrangements for Mr Waru’s daughter are not before us. We note matters of concern have been raised about Mr Waru’s son from the time he lived with Mr Waru and his former partner. Nonetheless, we do take account of the impact on his children of imprisonment but, given the total 20 per cent allowances which we regard as generous, overall we do not see room for the allowances to be increased.
That takes us to an end sentence of 26 months’ imprisonment. While the difference between that and the sentence of two years and six months’ imprisonment originally imposed is four months only, in the context of a sentence of that length, a reduction of four months warrants resentencing.
Result
The appeal is allowed.
The sentence of two years and six months’ imprisonment on the charge of ill‑treatment of a child is set aside and a sentence of two years and two months’ imprisonment is substituted.[87]
[87]The sentence of 18 months’ imprisonment for supplying cannabis is unchanged.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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