Waru v The King - [2025] NZCA 294

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA36/2025
[2025] NZCA 294

BETWEEN	BRIAN HERBERT WARU Appellant
AND	THE KING Respondent

Hearing:	15 May 2025
Court:	Thomas, Fitzgerald and Eaton JJ
Counsel:	A T Tupuola for Appellant I S Auld and O A Jessop Boivin for Respondent
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…

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 Waru v The King

Details

AGLC: Waru v The King [2025] NZCA 294
Case: [2025] NZCA 294
Decision Date: 3 July 2025 at 10.30 am

CaseChat Overview and Summary

The appeal was brought by Brian Waru against his conviction and sentence for charges of ill-treatment of a child and supplying cannabis to a person under 18 years old. The appeal was heard in the Court of Appeal of New Zealand and the judgment was delivered by Thomas J. The court allowed the appeal and reduced the sentence for the charge of ill-treatment of a child.

The legal issues the court was required to decide were whether the starting point for each charge was reached following an erroneous factual and legal analysis, whether the cumulative starting point was too high, and whether the adjustments made for personal aggravating and mitigating circumstances were appropriate.

The court found that there were material errors in sentencing on the ill-treatment charge. The court found that the starting point for the ill-treatment charge was reached following an erroneous factual and legal analysis as the time period set out in the question trail was shorter than the period taken into account by the Judge in sentencing. The court found that the starting point of 18 months’ imprisonment properly reflected the nature and seriousness of the offending and Mr Waru’s culpability. The court found that the four-month uplift to reflect prior convictions was exceeding the top end and considered an uplift of two months justified. The court found that the allowances of 20 per cent in respect of personal mitigating factors were generous and did not see room for the allowances to be increased. The court allowed the appeal and reduced the sentence for the charge of ill-treatment of a child to two years and two months’ imprisonment. The sentence of 18 months’ imprisonment for supplying cannabis was unchanged.

Orders