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Waugh v The Queen

Waugh v The Queen

Case [2018] NZHC 895 2 May 2018

Sentencing

Aggravated & Exemplary Damages

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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…

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 Waugh v The Queen

Details

AGLC: Waugh v The Queen [2018] NZHC 895
Case: [2018] NZHC 895
Decision Date: 2 May 2018

CaseChat Overview and Summary

Ethan John Waugh appeals his sentence for aggravated robbery. He was sentenced to five years and seven months imprisonment in the District Court. He submits the starting point was too high, the discount for personal mitigating factors was inadequate, and the sentence should be reduced to achieve parity with his co-offenders. The Crown submits the starting point was correctly assessed, the discount for personal circumstances was adequate, and the sentence was not manifestly excessive or wrong.

The starting point for sentencing must be appropriate for the gravity of the offending. The District Court Judge referred to the guideline case of R v Mako, but also looked at similar cases in Hemopo and Kerr. The Judge was correct to consider similar cases in light of the Court of Appeal’s comments in Tiori v R. The Judge was also correct that a discount for a guilty plea cannot be given twice. The starting point adopted by the Judge was within the range available to him given the aggravating factors of the offending.

The Judge considered the sentences imposed on Mr Waugh’s associates and distinguished the levels of offending. Parity of treatment is important, but the Judge correctly reflected the principle that a disparity argument cannot be built on an unjustifiable sentence. The Judge’s sentence was not manifestly excessive or wrong.

The 18-month deduction for personal circumstances was not broken down by the Judge. The Court of Appeal has said a discount for youth may be in the region of two years for a first offender aged 19, but the offender in this case was 24 years old. There should be no discount for youth on these facts. The Judge considered Mr Waugh is remorseful, but any adjustment to the personal factors discount would be tinkering with the final sentence. The sentence cannot be described as manifestly excessive or wrong.

For the reasons above, the appeal is dismissed.

Orders