Waugh v The Queen
[2018] NZHC 895
•2 May 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-13 [2018] NZHC 895
BETWEEN ETHAN JOHN WAUGH
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 April 2018 Appearances:
P J Doody for Appellant
C J Bernhardt for Respondent
Judgment:
2 May 2018
JUDGMENT OF NICHOLAS DAVIDSON J
Introduction
[1] On 25 January 2018, Mr Waugh was sentenced in the District Court to five years and seven months imprisonment on a charge of aggravated robbery. He appeals that sentence.
Background
Facts
[2] At approximately 5:00 am on 15 July 2017, Mr Waugh went with two associates to the victim’s house to steal cannabis. He entered the house through an open window. He found the victim in the living room and struck him in the head,
WAUGH v R [2018] NZHC 895 [2 May 2018]
knocking him to the ground. While the victim pretended to be unconscious, Mr Waugh continued to punch him for several minutes.
[3] Mr Waugh then let the first of his associates into the house through the back door. Together, they bound the victim’s hands and feet. While Mr Waugh kept an eye on the victim, the first and second associates loaded several mature cannabis plants, cannabis related equipment, $180 in cash, the victim’s Samsung Galaxy cell phone and keys into the victim’s car. Mr Waugh left in his vehicle and his associates followed in the victim’s stolen vehicle.
[4] The victim called neighbours for help. He suffered a facial fracture, a wound to the side of his head, black eyes, and cuts, grazes and bruising to his face and shoulder. His injuries required hospital treatment.
[5] The appellant accepts the Police Summary of Facts and pleaded guilty to the charge of aggravated robbery.
District Court sentencing
[6] The sentencing Judge referred to the facts of the offending. He considered the pre-sentence report, letters from the Salvation Army, the appellant's general practitioner, and a letter that the appellant had written himself. The Judge said these materials painted a picture of a man who has struggled with drug addiction and the loss of his father. He is considered at low risk of reoffending and a medium risk of causing harm to others.
[7] As a starting point, the Judge referred to the guideline case for aggravated robbery, R v Mako.1 The Court of Appeal said that:
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
1 R v Mako [2000] 2 NZLR 170 (CA) at [58].
[8]The Judge would be aware of this statement in Mako:2
… The criminality in any aggravated robbery offence must be assessed by the particular combination of features of which it is composed. That assessment must be made as a matter of judgment unconstrained by over emphasis on one feature such as the nature of the target premises.
[9]In sentencing he brought these factors to account:
(a)The high value of the property stolen;
(b)The level of violence of the incident, which caused serious injury requiring hospitalisation;
(c)The detention of the victim by the binding of his hands and feet;
(d)The premeditated nature of the attack;
(e)That it involved a home invasion; and
(f)That the house was targeted to steal drugs.
[10] The Judge considered several cases referred to by counsel, and distinguished Nathan, Williams, and Bullen as having no element of home invasion and therefore unhelpful.3 He found Hemopo and Kerr similar on their facts and that they provided helpful guidance.4
[11] Given the Court of Appeal’s comments in R v Mako and the similarity of the facts at hand to Hemopo and Kerr, the Judge adopted a starting point of nine years imprisonment.
2 Mako, above n 1, at [52].
3 R v Nathan [2017] NZHC 806; R v Williams CA 392/97, 31 March 1998; Bullen v R [2017] NZCA 615.
4 Hemopo v R [2016] NZCA 242; Kerr v R [2017] NZCA 498.
[12] He then considered aggravating and mitigating personal factors. He decided there were no aggravating factors. Mr Waugh was a first-time offender (putting two previous traffic convictions aside). Combining Mr Waugh’s history with his personal factors, but without any specific allowance for remorse, the judge reduced the starting point by 18 months and discounted 23 months for his early guilty plea.
[13]The end sentence was five years and seven months imprisonment.
This appeal
[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.6 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
[15]The cogent submissions of Mr Doody for the appellant distil to three grounds:
(a)The Judge adopted too high a starting point having regard to Mako.
(b)The Judge should have applied a greater discount for personal mitigating factors, particularly remorse.
(c)The end sentence was too high given the need for parity with the sentence of his co-offenders.
[16]The fate of this appeal largely turns on whether Mr Doody is right that Mako
indicates the adjusted starting point, after a defended trial, is in the order of nine to
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 1t [36].
7 Ripia v R [2011] NZCA 101 at [15].
10 years, and when a plea of guilty is entered, as here, the starting point should be in the region of seven years. He otherwise seeks adjustment for “personal circumstances” from the 16.7 per cent he calculates to 25 per cent, and a 25 per cent discount for a guilty plea.
[17] As an overarching consideration, disparity with the sentences of his co-offenders is such that Mr Doody submits that the Court should bring that to account in its final assessment.
[18] Mr Doody refers to several passages of Mako in which the Court upheld the approach to the starting point in sentencing as reflecting a defended hearing, which he submits is an aggravation in itself as the unsuccessful defence of such a charge is to put victims of home invasion through the ordeal again. He says that on a guilty plea that principle will not apply so the nominal starting point for a serious home invasion of nine to 10 years or thereabouts must adjust down, then personal circumstances be brought to account, then a discount for guilty plea.
[19] Mr Bernhardt for the Crown says that is to misread Mako and the sentencing Judge was correct when he referred to two cases where the starting point adopted was in the region of eight to nine years. He submits the discounting while omitting any express reference to remorse, is broadly correct and even if brought to account as Mr Doody submits, it is of a small percentage only and overall of no consequence, not such as to make the sentence manifestly unjust or wrong in principle.
Analysis
Starting point
[20]Mr Doody referred to Mako where the Court of Appeal stated:8
Once the seriousness of the particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender's particular personal circumstances such that the sentence to be imposed should be higher or lower than the starting point. We emphasise to dispel any doubt that in this context a starting point is the sentence considered appropriate for the particular
8 R v Mako, above n 1, at [34] (emphasis added).
offending (the combination of features) for an adult offender after a defended trial.
[21] If the starting point reflects a defended hearing as an aggravation of itself, then on a guilty plea that aggravating factor will not apply. Mr Doody says the guilty plea must be recognised at the first stage of sentence calculation, then a further discount will apply at the end of the sentencing exercise so there is a front and back loading for the guilty plea.
[22] Mr Bernhardt submits that the Court of Appeal said that the starting point reached by the passage set out above is “the true point of comparison with other offending”,9 as it is related to the offending itself without regard for personal circumstances or the plea. He says that a true point of comparison cannot reflect the different effects of guilty pleas, in their wide range of application:10
Once the appropriate starting point is fixed, adjustments can be made in mitigation to allow for such matters as pleas of guilty, assistance to the authorities, age and other personal circumstances.
[23] This is in line with the approach to sentencing which as Mr Bernhardt submits is set out in R v Clifford:11
(a)Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.
(b)Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.
(c)Step three: a discount for a guilty plea if the offender has pleaded guilty.
[24] Mr Bernhardt’s answer to Mr Doody’s submission is thus that the discount for a guilty plea cannot be given twice and the Judge took the orthodox approach to sentencing for this offence, consistent with Hemopo and Kerr where the starting point
9 At [53].
10 At [62].
11 R v Clifford [2011] NZCA 360 at [60], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [7].
was nine years. He says Mr Doody has misread Mako and the Court did not intend to bring the guilty plea to account twice.
[25] The Judge referred to several sentencing judgments and Mako was decided under a different statutory framework. The starting point of seven years in Mako increased by three years because of mandatory uplifts under the Crimes (Home Invasion) Amendment Act 1999. That enactment has been repealed, but despite that, home invasion remains an aggravating factor under s 9(1)(b) of the Sentencing Act 2002 and there is no indication it is viewed any more leniently now than before repeal.
[26]Mr Bernhardt refers to the Court of Appeal in Tiori v R:12
… a “home invasion" element is a seriously aggravating factor in aggravated burglary cases, justifying a significantly higher starting point than would otherwise be appropriate. The way in which that outcome is achieved is, however, different from the approach adopted in the home invasion legislation.
In the light of that difference, we do not consider it appropriate to approach the question whether the starting point is appropriate by a direct application of the starting point suggested for a home invasion case in para [58] of Mako. There, this Court was expressing a view that, for an aggravated robbery of the type described, a starting point of about half the maximum penalty would be appropriate. The repeal of the home invasion legislation and the different way in which the home invasion factor is now provided for in the legislation make it difficult to adopt the usual means of applying a guideline judgment, done through a direct comparison of the present case with the types of offending described in the guideline. We consider that the appropriate course in this case is to assess the starting point by comparing the sentences in other similar cases in this Court since the home invasion provisions were repealed.
[27]Instead of relying on Mako, Judge Garland had regard to Hemopo and Kerr.13
He summarised:
In Hemopo the starting point of nine years' imprisonment was upheld. That case involved a very similar level of offending, including a home invasion, actual violence was used and the victims were detained. While it did involve two victims and a knife and a bat found at the address were used as weapons, on the other hand the victim in the present case suffered more serious injuries indicating that the level of violence was more severe than in Hemopo.
12 Tiori v R [2011] NZCA 355 at [15] and [16].
13 Hemopo v R; Kerr v R, above n 4.
In Kerr and Jones, a starting point in relation to the primary offender of 10 years was taken. That was in relation to Mr Kerr. In relation to Mr Jones who played a lesser role, a starting point of nine years and six months' imprisonment was taken. The Court of Appeal considered that a starting point of eight and a half years' imprisonment was appropriate for Mr Kerr and eight years' imprisonment was appropriate for Mr Jones because there was a lack of premeditation, there was no home invasion in that case given that the offenders were invited into the house and while a machete was brandished there was only low level violence and threats of violence.
[28] Mr Bernhardt submits that in line with the Court's comments in Tiori about how paragraph [58] of Mako should be applied, the Judge was right to consider similar cases to arrive at his starting point.
[29] I conclude that the starting point adopted by the Judge was within the range available to him given the aggravating factors of the offending, and while Mr Doody put the argument well, there cannot be two discounts or allowances for a guilty plea. A discount for a guilty plea varies so much, depending on its timing, that to adjust the starting point for that, at the beginning, would lead to quite inconsistent and thus misleading starting points. It would erroneously put discounting first in the sentence calculation when it should be last.
Parity of treatment
[30] The Judge considered the sentences imposed on Mr Waugh’s associates. One of them was awaiting trial in the Youth Court. The other had been charged with burglary but the Police accepted that he should be diverted, as he played a lesser role in the offending.
[31] Mr Doody essentially submits that the Youth Court co-offender's sentence means there is a disparity in sentencing, and the decision to offer diversion to the third offender (who was charged as a party to aggravated burglary) also results in disparity worthy of a reduction in sentence.
[32] Mr Bernhardt submits that Mr Waugh’s role in the robbery involved meting out significant violence against the victim, whereas his youth co-offender was not inside the house at that time. The Court of Appeal in Simeon v R cautioned:14
14 Simeon v R [2010] NZCA 559 at [44].
… against comparisons between sentences imposed in the District Court and High Court with those imposed in the Youth Court, or even those imposed on youths who have been referred to the District Court or High Court for sentencing.
[33] The submission based on parity in relation to this offender must fail, as he was younger and although he has a criminal record, he was not the perpetrator of violence and did not lead the way.
[34]As to the third offender, the Judge said:
Another of your co-offenders the Crown accepts was not involved in the home invasion and the Crown accepts did not know what was happening inside the house. He has been charged as a party to burglary. He, I understand, was waiting in your vehicle outside and he helped load stolen goods into your car. Somewhat surprisingly I have to say, the Police accepted diversion for him.
[35] Parity is important in the administration of justice, but the Judge distinguished the levels of offending. Mr Bernhardt submits the Court cannot reduce a sentence on the basis of parity when the original sentence was inadequate and in R v Feterika the Court of Appeal stated:15
This Court has said on many occasions that a disparity argument cannot be built on unjustifiable sentence.
[36]The Judge, I consider, correctly reflected this principle.
Discount for personal circumstances and remorse
[37] The 18-month deduction for personal circumstances was not broken down into parts by the Judge. Mr Bernhardt submits that no more than a minor allowance should be made for remorse and is otherwise adequately dealt with by the allowance for personal circumstances, then by the 23 month discount for Mr Waugh’s early guilty plea.
[38] Mr Doody submits the appellant is entitled to a discount for his youth. The Court of Appeal in Hemopo said that for a first offender aged 19, a discount for youth may be in the region of two years.16 Mr Waugh is 24 years old. In Cummings v R, the
15 R v Feterika [2008] NZCA 127 at [47].
16 Hemopo, above n 4, at [8].
Court of Appeal held there should be no youth discount for an offender in that case, who was 23 years old. 17 In Martin v R, the Judge said that the 22-year-old offender’s age placed him at the upper range where a youth discount would normally be available.18 I am of the view that there should be no discount for youth on these facts.
[39] As to mental health and drug dependency, the Judge viewed the offending as having resulted from Mr Waugh’s methamphetamine addiction which had overtaken a cannabis habit. Attempts toward self-rehabilitation had been made, but Mr Waugh’s discharge from the Salvation Army programme for methamphetamine use limited the Judge’s room to give credit.
[40]In R v Abraham the Court of Appeal said that:19
… inability to appreciate the consequences of the offender’s actions and to exercise independent self-control, especially when that is combined with evidence of a continuing disorder and of drug dependency which is likely to exacerbate it and increase the risk of re-offending, may require the sentence, in the interests of the public at large, to put aside thoughts of discounting the penalty which the offence would otherwise warrant.
[41] Mr Bernhardt submits a discount for personal factors may include recognition of remorse without it expressly being mentioned.20 I consider Mr Waugh is remorseful. The PAC report demonstrates clearly bewilderment and regret on his part that with no criminal record he should have reached this end. He is clearly regretful and feels real concern about the effect on the victim. I consider this should be brought to account, but the extent to which an allowance can be made for that must be assessed when looking at the totality of the overall sentence. Making a small adjustment of about five per cent, three months, the personal factors would adjust to 21 months discount.
[42] However, even when that allowance is made the sentence cannot be described as manifestly excessive or wrong. I consider that any adjustment would be tinkering with the final sentence.
17 Cummings v R [2016] NZCA 509 at [89].
18 Martin v R [2016] NZCA 213.
19 R v Abraham (1993) 10 CRNZ 447 at 449.
20 Hemopo v R; Kerr v R, above n 4.
Conclusion
[43]For the reasons above, the appeal is dismissed.
………………………………………………..
Nicholas Davidson J
Solicitors:
PJ Doody, Christchurch
Raymond Donnelly & Co, Christchurch
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