Watene v The King

[2023] NZHC 441

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-43

[2023] NZHC 441

BETWEEN

TANIA LOUISE NGAHINA WATENE

Appellant

AND

THE KING

Respondent

Hearing:

6 October 2022, 19 October 2022, 25 November 2022,

19 December 2022 and 8 March 2023 and 14 March 2023

Counsel:

A R Laurenson for Appellant H Bullock for Respondent

Judgment:

8 March 2023

Re-issued:

Re-issued:

28 March 2023

5 April 2023

JUDGMENT OF ISAC J

[Appeal against sentence]

Introduction

[1]    Ms Watene1 appeals a sentence of three years and six months’ imprisonment together with an order for reparation of $150,0002 imposed on charges of arson,3 assault with a weapon,4 and refusing to permit a blood specimen to be taken when required (third offence).5

1      The appellant is identified in the Court papers and decisions below as Tania Louise Ngahina Cresswell. Ms Watene confirmed at the hearing on 8 March 2023 that she prefers to be known by the surname Watene. I have adopted that name in this judgment.

2      R v Watene (Cresswell) [2022] NZDC 15964 [Sentencing Notes].

3      Crimes Act 1961, s 267(1)(b); maximum sentence of 14 years’ imprisonment.

4      Section 202C; maximum sentence of five years’ imprisonment.

5      Land Transport Act 1998, ss 60(1)(b), 60(3) and 72(1)(a); maximum sentence of two years’ imprisonment or a $6,000 fine, and mandatory disqualification of more than one year.

WATENE v R [2023] NZHC 441 [5 April 2023]

[2]    The original grounds of appeal were that the five-year starting point adopted by the Judge was too high, and inadequate discounts were provided for personal circumstances, remorse and previous good character. Finally, it was submitted that the order for reparation was excessive.

[3]    Following her sentencing Ms Watene applied for bail pending appeal. This was granted by the District Court on 19 August 2022.6 It follows that she has remained in the community and in employment since sentencing without further incident.

[4]    When Ms Watene first appeared in this Court on 25 October 2022, I raised with Mr Laurenson, for Ms Watene, whether she was in a position to make a substantial reparation payment either through recourse to her KiwiSaver fund, or whānau, or both. It seemed that the only realistic way of securing a just outcome which saw the financial harm caused to the victim addressed in some modest way was a community based sentence that would keep Ms Watene in employment and with the means of making reparation. Unfortunately, this possibility has resulted in significant delay, and four further hearings.

[5]    In a judgment of 8 March 2023, I allowed Ms Watene’s appeal and sentenced her to home detention, having heard from counsel that her proposed home detention address remained available. The following day counsel advised the Court that this was no longer the case. While Ms Watene had an alternative address available, Community Corrections would require a further two weeks to assess its suitability. In light of this, on 9 March 2023 I recalled my judgment and remanded Ms Watene on bail until further order.

[6]    On 28 March 2023, Community Corrections confirmed that the alternative home detention is suitable and technically feasible. Given this, I re-issue my judgment of 8 March 2023, with necessary amendments.

6      R v Watene (Cresswell) [2022] NZDC 18732 [Bail Judgment].

The offending

[7]    The facts of the offending are set out in a decision of Judge Hikaka of 7 July 2022, in which he found Ms Watene guilty of assault with a weapon,7 and in the judgment under appeal.8 A summary follows.

[8]    Ms Watene and the victim had been in a relationship for approximately eight years. They separated in November 2020 but renewed their relationship by Christmas Eve of the same year, about three weeks before the events leading to the charges.

[9]    On 15 January 2021, sometime after 9 pm, the victim collected Ms Watene from her friend’s house where she had been drinking and returned to his house nearby. Ms Watene was heavily intoxicated, having consumed around 12 premixed bourbon drinks. The victim had also been drinking.

[10]   An argument developed when the victim received a text message from a female friend. Ms Watene thought the victim was having a relationship with the woman, although that was not the case. The victim then dropped Ms Watene back to her friend’s house and returned home.

[11]   Shortly thereafter, Ms Watene made her way back to the victim’s property, it seems in a drunken and jealous rage. She took a large piece of timber from a pile of offcuts outside the victim’s house, and struck him on the forehead, causing injuries to his face. The victim then threw a punch at Ms Watene’s head to prevent a further attack. Ms Watene had marks to her forehead and eye consistent with such a blow.

[12]   A heated verbal exchange ensued, with both parties yelling abuse at each other. The victim then called 111, and much of what was said was recorded and produced in evidence.

[13]   While the victim was on the phone to the emergency operator, Ms Watene began moving through the house, setting fire to the curtains with a lighter. She could

7      R v Watene (Cresswell) [2022] NZDC 12933 [Assault Judgment].

8      Sentencing Notes, above n 2.

be heard taunting the victim and suggesting that she would tell the Police that the victim had been the abuser.

[14]   Police and the fire service attended. Ms Watene had to be forcibly removed from the victim’s home. He sustained a significant burn to one of his arms trying to put out the fire, requiring hospital treatment and a skin-graft.

[15]   The victim had purchased the house with financial assistance from his father. He had put an enormous amount of time and money into an extensive renovation. It seems that work had only just been completed when Ms Watene set fire to the home.

[16]   The fire completely destroyed the house. It was uninsured. And as the building was on Māori leasehold land, the victim has no interest in the underlying land. It is estimated that the pre-fire value of the property was between $145,000 and $165,000.

[17]It is therefore no exaggeration for the victim to say:

Tania [Watene] ruined my life. She burned everything I owned to the ground.

Judgment under appeal

[18]   Judge Hikaka sentenced Ms Watene on 19 August 2022. At the outset, he recorded Ms Watene had pleaded guilty that day to refusing to give blood to an officer after failing a breath screening test on 22 July 2022.

[19]   After outlining the facts and circumstances of the offending, the Judge set the starting point for all three charges at five years’ imprisonment.9

[20]   From there he applied a 20 per cent discount for the early guilty plea to the charge of arson.10 That was said to bring the sentence down to three years and nine months.11 However, this appears to be a minor miscalculation as a 20 per cent discount from a five-year starting point results in four years’ imprisonment. Any arithmetical error does not matter because it broke in Ms Watene’s favour.

9 At [37].

10 At [38].

11 At [39].

[21]   Finally, the Judge provided a further discrete three-month discount for what he considered could be seen as “a gross error of judgment” and Ms Watene’s apparent desire to “take revenge [given her] perception of what had occurred outside of [her] relationship with the victim”.

[22]   As a result, he arrived at an end sentence of three years and six months’ imprisonment. In total, that represented a 30 per cent discount from the starting point.

[23]   On the drink-driving charge, the Judge sentenced Ms Watene to one months’ imprisonment to be served concurrently, and disqualified her from driving for one year and one day, the minimum required by law given it was her third offence.12

[24]Turning to reparation, the Judge concluded:13

I set reparation at $150,000, but to be reviewed at a later time when more information should be available as comments have been made that you have no savings but there is also information that you do in fact have savings, not readily accessible, more by way of KiwiSaver superannuation. I have no idea what amount could be applied from that toward reparation. I am mindful of restrictions on the amount that can be ordered for reparation and that is why I want to review that at a later time at counsel’s application. That amount is less than the loss caused by your actions.

Standard of appeal

[25]   Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.14 The focus is on the final sentence reached. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court's approach to determining the extent of the error in sentence appeals.15

12     At [38] and [40]; Land Transport Act 1998, s 60(3)(b).

13 At [44].

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

15     At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].

The sentence appeal

Starting point

[26]   There is no tariff case for arson, reflecting the broad variety of circumstances in which it can occur.16

[27]   Mr Laurenson, for Ms Watene, argued that the starting point should have been no higher than four years. He says that the present offending is less serious than arsons in which starting points of five or more years were imposed. In R v Daniels, a five year starting point was adopted where the defendant locked the main exit of the house and set the fire while the victim was sleeping, before waking him up by shouting and unlocking the door and leaving with the victim.17 In Ollerenshaw v R, the defendant broke into the house of his former partner, stole expensive, irreplaceable jewellery, and set fire to the house “with the purpose of causing her very significant and lasting injury”, in which he succeeded.18 While noting it was “unquestionably severe”, the Court of Appeal upheld a starting point of six years.19 In R v Skeens, the appellant, after threatening to burn down his father’s house and kill him, lit a fire in the house while his father and two other people were asleep.20 While the occupants were fortunately able to wake up and extinguish the fire before serious damage could be caused, the risk to human life was serious. A starting point of five years was upheld by the Court of Appeal. Finally, Mr Laurenson pointed to Erickson v R where the Court of Appeal noted that the common range for starting points in arson cases is between three and five years,21 noting that the sentence imposed by the District Court was right at the top of that range.

[28]   Unlike  those  cases,  it  was  submitted  there  was   no   premeditation   in Ms Watene’s offending. The appellant lit the fires spontaneously and in a confused and irrational state. Further, the appellant had no relevant previous convictions and the

16     R v Z CA139/00, 27 June 2000.

17     R v Daniels [2017] NZHC 2805.

18     Ollerenshaw v R [2010] NZCA 32.

19 At [19].

20     R v Skeens CA341/01.

21     Erickson v R [2012] NZCA 449 at [11].

danger to the victim was comparatively low, given he was conscious and aware of the fire.

[29]   Like the Judge, I consider that the aggravating factors of the offending were the use of significant violence, the extent of the damage caused by the fire and the burns it caused to the victim, the risk of danger the fire posed to others, including police and members of the fire service, and the apparent retribution involved. Although no doubt driven by drunken jealousy, there was an element of cruelty in the arson.22 As the Judge noted, the appellant “was the provocative one, the more aggressive of the two and intent on not only provoking the complainant but also looking to attribute blame to him”.23

[30]   Having regard to these circumstances, and in light of the cases cited by counsel,24 I am satisfied that the starting point of five years adopted by the Judge was appropriate and within range.

[31]   Mr Laurenson’s challenge to the starting point was focussed on a comparison with other arson cases involving a five-year starting point. The difficulty with this is that it is not an accurate comparison; that is because the Judge adopted the overall starting point to reflect the totality of the offending, which included a serious assault. A starting point of 12-months’ imprisonment for Ms Watene’s violence alone would have been within range, and a further discrete but modest uplift was also required to reflect the alcohol related driving charge. It follows that while the Judge did not provide a break-down of the overall starting point, it seems likely that the arson attracted no more than four years’ imprisonment on its own. No criticism could be made of that figure in light of the authorities, or indeed the overall starting point given the totality of the offending.

22 Assault Judgment at [22]; and Sentencing Notes at [19]. While the Judge clearly found them useful in reaching his views on liability and sentencing, neither the audio recording or transcript of the 111 call made by the victim on the night of the fire has been made available to this Court on appeal.

23 Assault Judgment at [22] at [32].

24 R v Daniels, above n x; Ollerenshaw v R, above n x, Erickson v R [2012] NZCA 49; Howarth v R

[2010] NZCA 523; Hall v R [2021] NZCA 314; and R v Skeens CA341/01, 26 February 2002.

Section 27 report

[32]   Mr Laurenson submitted that Ms Watene’s s 27 report reveals a history of domestic violence. A discount ought to have been provided given the Judge’s comment that “I am satisfied there is a link between alcohol abuse, violence and this offending”.25

[33]However, that submission ignores the Judge’s conclusion on the s 27 report:26

I do not see any connection between your upbringing and your behaviour on this occasion other than what others have recognised is issue with alcohol abuse over the years and you have not addressed that issue.

[34]   The evidence suggests that it was Ms Watene who was the aggressor. While I accept Ms Watene has trust issues and that there is information in the report suggesting some exposure to domestic violence, which might explain why she became so angry on 15 January 2021, there is nothing which diminishes her culpability for the offending. Rather, the evidence points to the conclusion that the offending arose in large part as a result of Ms Watene’s issues with alcohol. That is reinforced by her three drink-driving offences, the most recent of which occurred while she was on bail for the arson and assault charges. They establish a pattern of drunken offending. And as the report writer noted, Ms Watene was known to become violent when intoxicated.

[35]   I do not accept that factors arising from the s 27 report warranted any discrete discount.

Remorse

[36]   Mr Laurenson argued a discount ought to have been made for remorse. He notes the appellant wanted to attend a restorative justice course, but that the victim did not. He submitted that Ms Watene’s remorse was genuine, pointing to the pre-sentence report where she is quoted as saying “I feel absolutely disgusted that I could even do something like that, it is not me, it is so out of character for me to do something like that”.

25 Sentencing Notes at [31].

26 At [35].

[37]   While I agree that at the time of sentencing the Judge was correct not to make an allowance for remorse, in light of Ms Watene’s subsequent conduct, particularly the payment of reparation, I am satisfied that she has demonstrated genuine remorse and that this warrants a further discrete discount. I turn shortly to consider these issues.

Previous good character

[38]   The appellant submits that as she is 58 years of age, and only has two previous convictions for driving with excess breath alcohol, she should be treated by the Court as a first offender. She points to character references and the s 27 which demonstrates that her actions were out of character.

[39]   While I readily accept this very serious offending was out of character for  Ms Watene, that is quite a different matter from a discount for previous good character. Unfortunately she is not a first offender. Her previous drink-driving convictions suggest a pattern of loss of self-control and poor judgment when drinking that has led her to offend now on a number of occasions. That pattern has now persisted into much more serious offending and harm to others. It is troubling that despite the clear indications of problematic drinking, Ms Watene does not appear to have engaged in any form of treatment for dangerous drinking behaviour.

[40]   Regardless, the Judge provided a three month (or five per cent) discount for Ms Watene’s “gross error of judgment”. This might be viewed as a discount for previous good character, or a recognition that the offending was out of character. I do not consider any further reduction could be warranted.

[41]   In conclusion, I am not satisfied that there has been an error in the approach taken by the sentencing Judge. However, for the reasons that follow, I consider that there has been a change of circumstances after sentencing which requires me to consider afresh the appropriate sentence.

Reparation

[42]   Section 12 of the Sentencing Act 2002 provides that sentences of reparation should be made unless they would cause undue hardship. Undue hardship has been

described as something more than the ordinary concept of hardship such as excessive hardship or hardship greater than the circumstances warrant.27

[43]   In Guinness v Police, Woodhouse J reviewed the relevant authorities and concluded that undue hardship will generally be found where an order for reparation cannot be met within five years.28

[44]   Ms Watene is 58 years old, and currently works in a very physical job at the meat works in Midhurst. A reparation report provided to the Court, based on an interview with her and her payslip information, advises:

Her income and expenditure allowed for Ms [Watene] to pay reparation at

$100 per week without causing any financial hardship on her. Ms [Watene] advised that she has seven years of employment left before retirement age and that she was committed to paying this amount up until that time. She was not sure what would happen after she is no longer working.

[45]   On behalf of the Crown, Ms Bullock accepts that reparation order for $150,000 is excessive. If the appellant were to pay $100 per week for her remaining years in employment, the reparation amount would total approximately $33,000. Further,   Ms Bullock notes that the report does not outline whether Ms Watene would be able to make such payments while she is in prison. It is submitted that reparation remains appropriate regardless of whether a term of imprisonment is imposed in order to recognise the harm caused to the victim.

[46]   Since her sentencing, Ms Watene has made voluntary payments by way of amends of $6,900. Of this sum, $5,000 has been made available by her KiwiSaver scheme provider (out of a total of a little over $8,000). I am advised the sum of $5,000 was the maximum amount the fund provider could release under a “substantial hardship” ground.

[47]The balance of these payments, $1,900, represents Ms Watene’s efforts to pay

$100 a week out of the wages she earns. She says she is committed to continuing to pay reparation at this rate until she reaches the age of retirement; that is, for a further

27     Hunt v Police HC Wellington AP232/99, 29 September 1999.

28     Guinness v Police [2015] NZHC 883 at [17] and [18).

six-and-a-half years. That prospect goes beyond the threshold commonly thought to raise the prospect of undue hardship, and it is to Ms Watene’s credit that she is prepared to make that offer nevertheless.

[48]Given:

(a)Ms Watene’s efforts to make a lump-sum reparation payment to the victim;

(b)her payments of reparation since she was sentenced in August 2022; and

(c)the interests of the victim and the community in keeping Ms Watene in employment so she can continue in her work and make further reparation payments to her victim—

I am satisfied that there has been a material change of circumstances since she was sentenced in the District Court.

[49]   I am also satisfied, in light of the authorities I have noted, that the reparation order imposed by the District Court was manifestly excessive. It follows that sentencing falls to be undertaken afresh, although in doing so I respectfully adopt the starting point and all but one of the discounts applied by Judge Hikaka.

The appropriate sentence

[50]   Under the Sentencing Act the court is required to take into account an offer of amends or any measure taken by the appellant to make good the harm that has occurred.29 In deciding whether and to what extent those matters should be taken into account, the court must also take into account whether the offer was genuine and capable of performance, and whether it has been accepted by the victim as expiating or mitigating the wrong. If, despite any offer or payment of reparation, a court

29     Sentencing Act 2002, ss 8(g), 8(j) and 10(1) and (2).

determines that it is appropriate to impose a sentence, it must take those offers and payments into account when determining the appropriate sentence.30

[51]   Ms Bullock submitted that discounts for reparation tend to range between five and 20 per cent, depending on the circumstances.31 She submitted that in the present case Ms Watene’s contributions justify a discount of between five and 10 per cent.

[52]   The authorities cited in Hall’s Sentencing suggest that discounts of as much as 50 per cent have been made for offers of amends and reparation payments.32 As the Court of Appeal observed in R v Clotworthy, the appropriate level of discount will depend on the facts of the case and a close assessment of the relevant sentencing considerations.33 The nature of the offer, the effect of payment on the offender, and whether the offer is voluntary will be relevant. A voluntary payment (amends) is different to a payment ordered by the court (reparation),34 and may indicate remorse and a desire to atone especially if it is likely to cause hardship.35 The nature of the offending and the harm caused, the extent to which the offer of amends mitigates the victim’s loss, and whether the victim accepts the offer, are also factors likely to be highly relevant. Whereas payments by perpetrators of, for instance, sexual offending have often been given little weight,36 payments in amends appear to have been afforded significantly more weight in offending that primarily involves financial loss,

30 Section 10(3).

31 In Commissioner of Inland Revenue v Naisbitt [2017] NZDC 25304 of 21 per cent was allowed, although that case involved an order for reparation in full of almost $140,000).

32 Hall’s Sentencing (online looselef ed, LexisNexis, 2023) at [SA10.1]–[SA10.3]; R v Thacker CA392/90, 22 March 1991, sentence of 18 months’ imprisonment reduced to nine months following payment of $16,000 by amends (50 per cent); R v Farrell CA303/86, 22 May 1987, sentence reduced from three years’ imprisonment to 18 months where $4,000 payment made toward farmer’s $22,000 losses and offender entered voluntary work arrangement with victim (50 per cent). See also Koya v Police HC Auckland AP 133/92, 12 June 1992, sentence of 18 months’ imprisonment reduced to 12 months where reparation of $65,000 paid toward $90,000 obtained through fraud (33 per cent).

33 R v Clotworthy (1998) 15 CRNZ 651, sentence of five years’ imprisonment reduced to three where

$5,000 paid immediately to victim and $10,000 to be paid in instalments (40 per cent, including guilty plea).

34 Davies v Police [2009] NZSC 47; [2009] 3 NZLR 189 at [31].

35   Patterson  v  R  [2008]  NZCA  75  at  [41];  Burke  v  Police  HC  Tauranga  CRI-2006-470-32,  16 November 2006; and O’Hanlon v Police HC New Plymouth CRI-2009-443-26, 18 December 2009.

36 R v M [2008] NZCA 112; R v Johnson [2010] NZCA 168; and Rafiq v R [2017] NZCA 220.

such as by fraud or property damage.37 Overall, it is clear that a highly fact specific approach is necessary.

[53]   Ms Watene has voluntarily paid a significant proportion of her retirement savings to the victim. She was not required to. This was not only an offer of amends but concrete steps by her to do so.

[54]   While the total reparation that Ms Watene is able to pay represents a fraction of the loss that she has caused to the victim, I consider that the focus in fixing the appropriate sentence must be on the means of the person making amends and the effect that those payments will have on them. Ms Watene is 58 years old and nearing retirement with little to no savings and a relatively low income. She has severely depleted her modest retirement savings in order to make a lump sum payment to the victim, and has made regular payments in addition since her sentencing last August. Further, Ms Watene has committed to continue making weekly payments to the victim of $100 for the remainder of her working life. Given her age and financial position, this will have a significant impact on her own financial wellbeing and the quality of her retirement. In my view her conduct demonstrates a very high level of remorse, and the impact of the reparation order must be fully and fairly reflected in the appropriate reduction to the starting point. In addition, in a memorandum of 21 November 2022, Crown counsel relayed the victim’s views, which were said to “clearly indicate a preference for reparation to continue to be paid…over the appellant serving an imprisonment term”. I am obliged to have regard to those views.

[55]   Ms Watene also advised me at the last hearing that she has voluntarily sought assistance in relation to her use of alcohol, which, as I have noted, has been a common factor in her offending. Her steps to seek help and prospects of rehabilitation must also be acknowledged in the sentence I impose.

[56]   In all the circumstances, I consider that a combined discount of 30 per cent is warranted for the significant payments made to date and the remorse that Ms Watene has now demonstrated, her offer to continue paying reparation until retirement, and

37     See Thacker, Farrell and Koya, above n 32. See also R v Pian [2020] NZHC 2216 (20 per cent discount applied where voluntary repayment in full before police or court involvement).

her steps to address alcohol use. In making this discount, I acknowledge that it is likely to be at the upper end of the permissible range, but consider it is necessary to reflect the significant steps that the appellant has made to try and remedy—as far as she can— the harm she has caused to the victim. I consider that justice is best served by ensuring he receives amends for that harm rather than imprisoning the appellant for a significant proportion of her remaining working life.

[57]   The appeal against the sentence of three years and six months’ imprisonment is allowed. In light of Ms Watene’s steps to address the financial harm caused by her offending and remorse I am satisfied that a sentence other than one of imprisonment is the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences set out in s 10A of the Sentencing Act.38

[58]   On the charge of arson Ms Watene is convicted and sentenced to 12 months’ home detention. I defer the start of her sentence until Thursday, 30 March 2023, so that the necessary arrangements can be put in place.

[59]   While it is ultimately for the probation service to determine the conditions on which that sentence must be served, I record that the reason she has been sentenced to home detention is to enable the appellant to retain employment and, in turn, continue paying reparation to the  victim. Given the letter  of support I have received from  Ms Watene’s employer, I do not see why that should not be possible. I would ask the probation officer responsible for her sentence to take steps to ensure the sentence does not affect her ability to meet the sentence of reparation.

[60]   Finally, I make a reparation order  in  the  sum  of  $30,000.  The  moneys  Ms Watene has already paid into Court are in reduction of that sum and should be paid to the victim as soon as possible.

38     Sentencing Act, s 8(g).

[61]   Ms Watene is convicted and discharged on the remaining charges. Her period of disqualification on the driving charge remains unaltered. She is to attend on the probation service as directed.

Isac J

Solicitors:

Crown Solicitor, New Plymouth for Respondent