Weatherall v The King

[2025] NZHC 2257

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2025-476-10

[2025] NZHC 2257

BETWEEN

RODGER ALAN WEATHERALL

Appellant

AND

THE KING

Respondent

Hearing:	31 July 2025
Appearances:	C J Lange for Appellant N Girgis for Respondent
Judgment:	11 August 2025

JUDGMENT OF HARLAND J

Introduction

[1]    The appellant appeals against a sentence of two years and 10 months' imprisonment imposed by Judge C  D Savage in  the District  Court  at Timaru on  11 December 20241 for charges of ill-treatment of a child2 and assault on a child (representative).3 The victim of the appellant's offending was, at the time, a two-year- old girl who was very slight for her age. She was the daughter of the appellant's then partner and they had been in a relationship living together since July 2022.

[2]    The appellant submits the Judge erred in his sentencing methodology which resulted in a manifestly excessive sentence. He contends that separate starting points

1      R v Weatherall [2024] NZDC 31060.

2      Charge 1 Crown Charge List dated 18 September 2024, Crimes Act 1961, s 195 - maximum penalty 10 years' imprisonment.

3      Charge 14 Crown Charge List dated 18 September 2024, Crimes Act 1961, s 194(1) - maximum penalty two years' imprisonment.

WEATHERALL v R [2025] NZHC 2257 [11 August 2025]

for each charge should have been adopted, with an adjustment for totality made thereafter.

[3]    The Crown submits that, although there may have been error in the Judge's sentencing methodology, the end sentence was within the range available to him and therefore the appeal ought to be dismissed.

[4]    The appeal was filed out of time. The reasons for the delay are outlined in an affidavit filed by the appellant in support of an application for an extension of time to file the notice of appeal. The Crown does not oppose the application for leave. The reasons for the delay are satisfactorily explained. I grant the extension sought.

[5]    I have decided to allow the appeal. This judgment sets out my reasons for doing so.

The charges

[6]    On 18 May 2023, a number of charges were laid against the appellant in the Timaru District Court, all against the same young victim. They included a charge of injuring with intent to injure on 25 January 2023 at Timaru, ill-treatment of a child (jointly charged with the appellant’s then partner) on 4 August 2022 at Timaru and a number of charges of assault on a child alleged to have occurred on 4 August 2022 at Dunedin and 20 September 2022 at Timaru.

[7]    On 6 June 2023, the appellant pleaded not guilty to the charges and elected to be tried by a judge alone. At some point, the Crown took over responsibility for the charges. A Crown Charge Amendment Notice was filed on 5 September 2023 which removed the injuring with intent to injure charges and included one charge of ill- treatment of a child, seven representative and five non-representative charges (12 overall) of assault on a child between 4 August 2022 and 13 October 2022 at Dunedin, and between 13 October 2022 and 25 January 2023 at Timaru.

[8]    The charges were set down for trial in the District Court on 18 September 2024. The relevant Crown Charge List replicated the Amended Crown Charge Notice insofar as it concerned the appellant.

[9]    I was advised that, at the outset of the trial, after the Crown opening, there were discussions about resolving the charges. These discussions resulted in the appellant pleading guilty to charge 1 (ill-treatment of a child), and charge 14, a representative charge of assault on a child between 13 October and 25 January 2023 in the South Island.

[10]   The appellant was convicted and remanded to appear before the Court for sentence on 11 December 2024.

The facts

[11]   I now set out the facts as they are contained in the agreed Summary of Facts. The charges relate to a six-month period of systematic neglect and abuse.

Charge 1 - Ill-treatment of child

[12]   Between 4 August 2022 and 25 January 2023, the appellant and his then partner would smoke cannabis together. The victim would go into the room when they were smoking cannabis. She would say "bong" when the appellant was getting the cannabis bong ready. He would then ask her if she wanted a "bong" and she would say "yip". Both the appellant and his then partner were aware that the victim was in the room full of cannabis smoke but did not stop this from occurring. After being in the room with the cannabis smoke, the victim was noted to be clumsy on her feet.

Charge 14 - Assault on a child (representative)

[13]   The representative charge of assault on the child relates to a number of assaults that occurred between 13 October 2022 and 25 January 2023 in the South Island.

[14]   The agreed Summary of Facts did not exactly reflect the timeframe set out in charge 14 as it also included the period between 4 August 2022 and 13 October 2022 when the appellant, his then partner and the victim were living in Dunedin. Because the appellant pleaded guilty based on the Summary of Facts, it was submitted that, even though charge 14 did not correctly refer to the appropriate timeframe, the pleas were entered based on the wider timeframe referred to in the agreed Summary of Facts.

[15]   This is a reasonable inference to draw because the place the offending occurred was amended by the Judge upon plea to refer to the South Island instead of solely Timaru as the place of the offending, ostensibly to extend its coverage to also include the Dunedin offending. There would have been no need for that amendment if the charge to which the appellant was pleading guilty was not intended to extend back to August. While I accept this submission in this case, I must emphasise the importance of the record accurately mirroring the agreed facts when a defendant pleads guilty to a charge, especially as to timeframe.

[16]I return to the agreed Summary of Facts as it concerns the assaults.

Dunedin - 4 August 2022 to 13 October 2022

[17]   While living in Dunedin, the appellant was noted by an associate to be doing most of the parenting of the victim.

[18]   During mealtimes, the appellant would squeeze the victim’s cheeks with his forefinger and thumb, making her cry. He did this on two to three occasions between 4 August and 13 October 2022.

[19]   The appellant also force-fed the victim by cupping the palm of his hand under her chin, then squeezing her mouth open with his fingers and thumb on both sides of her cheeks. In this manner, he forced too much food into her mouth too quickly, making her cry.

[20]   Over this period, the appellant would smack the victim either on her hand or backside. This was the dominant form of discipline he used to obtain her compliance. The victim would often cry and the smacks would leave her with red marks and bruising.

[21]   A child of similar age to the victim also lived at the address. The victim bit the other child on the forehead. The appellant growled at the victim and bit her on the arm, resulting in her screaming out loudly. Clearly visible teeth marks were left on the victim’s forearm. In explanation, the appellant said he did this because he was taught that "if they bite, you bite back".

Timaru - 13 October 2022 to 25 January 2023

[22]   Between 13 October 2022 and 25 January 2023, the appellant, his then partner and the victim were living with the appellant's sister in Timaru. While there, the appellant would hit and smack the victim and force-feed her until she vomited. He hit the victim with an open hand on a daily basis, mainly on her legs and backside.

[23]   On one occasion, the appellant's then partner was feeding the victim porridge. The victim did not want to eat it and the appellant's then partner informed him of this. The appellant responded by shoving spoonful after spoonful of porridge into the victim’s mouth without letting her have a breath. The victim vomited and was smacked and called "a pig" by the appellant.

[24]   On 25 January 2023, a social worker visiting the address observed that the victim had extensive facial injuries. The appellant’s then partner took her to Timaru Hospital where it was noted she was suffering from multiple cuts and bruises to her body. The bruising patterns were considered consistent with inflicted injuries.

[25]   When spoken to, the appellant denied abusing the victim, considering himself to be an excellent parent.

District Court decision

[26]Judge Savage in the District Court commenced his decision as follows:

[1]        The maximum penalty for ill-treatment of a child is 10 years' imprisonment and I am only allowed to impose anything approach the maximum for the worst cases of their kind. I have been involved in the criminal justice sector for over three decades and so I have seen worse than this but really not much.

[2]        When you look at what this young girl has been subjected to, it turns one's stomach, whether or not you are a parent.

[27]   Unfortunately, aside from this, the Judge did not refer to any of the facts of the offending.

[28]The Judge, when considering the appropriate starting point, said:

[3]        I think the Crown has been very charitable in submitting an appropriate starting point is three years’ imprisonment. I am not going to go higher up than that.

[4]        The starting point for you on the ill-treatment charge will be three years’ imprisonment.

[29]   The Judge said nothing further about the starting point despite the fact that Ms Girgis for the Crown had provided detailed written sentencing submissions.

[30]The Judge then dealt with matters of mitigation. He said:

[5]   As Ms Girgis says, the plea came very late in the piece.   It certainly  has not been accompanied by any expressions or remorse of acknowledgement on your behalf that there might be some areas of your life that you require some assistance with to reduce the risk of you doing it to some other child that is unfortunate to come within arm’s length of you.

…

[8]        The acknowledgement of responsibility, as it was at the time you entered your pleas, came very late in the piece and I accept what the Crown says that a reduction of five per cent is about where the justice of it lies and off a 36-month starting point, I calculate that to be two months.

[9]        As I have said, there have been no expressions of remorse, no acknowledgement of rehabilitative needs. You appear in the dock today as being quite defiant. Ms Wham has responsibly put before me, as she must as your advocate, the spectre of head injuries that may have been suffered by you or some developmental difficulties you may have or some depressive illnesses you may have and has sought a discrete discount for them but I simply do not have the evidence of them so they are not going to play a part in this sentencing equation.

[10]      As good as it gets is the five per cent reduction from that starting point for the plea that came at the eleventh hour and that is a reduction of two months.

[31]The Judge then concluded:

[11]  From the starting point, the end point for you is a sentence of two  years, 10 months' imprisonment and that is going to be imposed on the ill- treatment charge and there will be a concurrent sentence of 18 months' imprisonment on the assault charge.

Discussion

[32]   Mr Lange for the appellant submitted a starting point of 12 months' imprisonment was appropriate for the representative charge of assaulting a child and

a cumulative uplift of six months' imprisonment should have been adopted for the ill- treatment of a child charge.

[33]   Ms Girgis for the respondent submitted a global starting point of three years’ imprisonment for all of the offending was appropriate.

[34]   It must be said at the outset that the Judge's approach to this sentencing was unorthodox. The facts upon which the sentence was based were not articulated at all and neither was there any analysis of the factors or rationale that persuaded him to adopt the Crown's nominated starting point of three years' imprisonment. The Crown's written submissions in the District Court had been that a starting point in the vicinity of six months' imprisonment was justified for the ill-treatment charge but, taking into account the assault charge, a global starting point of three years was justified. This meant the assault charge would need to have attracted a starting point of two years six months’ imprisonment when the maximum penalty for this offence is two years' imprisonment.

[35]   Therefore, the only inference available from the Judge's nominated starting point of three years' imprisonment was that he did not in fact accept the Crown's nominated starting point of six months' imprisonment for the ill-treatment charge. Rather, he adopted a global starting point which did not articulate the differences between the appellant’s culpability for the offending covered by each charge.

[36]   When one looks at the Summary of Facts, the ongoing serious nature of the assaults against the victim should, in my view, have been adopted as the lead charge, especially given the conclusion by the paediatrician in her medical assessment that "in my 25 years of working with children this is the most concerning bruising pattern I have encountered". This is not to minimise the facts upon which the ill-treatment charge was based but they were stand-alone charges. So, it would have been wrong to include the assaults as part of the ill-treatment charge in adopting a starting point because this would have resulted in the assaults being double-counted.

[37]   In some respects, the Crown’s decision to accept a guilty plea to one of the representative charges of assault on a child assisted in creating this situation. If some

or all of the other 11 assault on a child charges which were withdrawn had remained, the Judge could have imposed cumulative sentences dealing with the various assaults on the child, an outcome that, in my view, would be entirely unimpeachable. The Court of Appeal has made it clear that, when sentencing an offender on multiple charges, a starting point above the statutory maximum arrived at through the use of cumulative sentences is warranted, even if the offences are linked, if the overall criminality of the offending requires it.4 If this had occurred, an adjusted starting point of three years' imprisonment could well have been justified. But that was not the approach taken.

[38]   I now analyse the cases provided by counsel to support their respective submissions to assess whether a global starting point of three years was justified.

Charge 1 - Ill-treatment of child

[39]For the ill-treatment of a child conviction, the authorities referred to were:

(a)        Frantzetis v R, where the appellant was convicted of three representative charges of assault with a weapon and three representative charges of ill- treatment of a child.5 The offending included underfeeding and hitting with a wooden spoon. A starting point of 24 months’ imprisonment was upheld on appeal;

(b)       R v Mead, where there were four charges of wilfully ill-treating children in a manner likely to cause unnecessary suffering.6 The offending involved food deprivation, force-feeding, excessive chores and beating with a belt. The Court of Appeal declined to interfere with a sentence of two years, six months’ imprisonment;

(c)        Nohe v R, where the appellant was sentenced to 15 months’ imprisonment on six charges of ill-treatment and neglect of a child.7 In that case, the appellant inhaled glue which incapacitated her, leading to the neglect of

4      Harris v R [2018] NZCA 632 at [17] and R v Xie CA397/05 at [19].

5      Frantzetis v R [2015] NZHC 710.

6      R v Mead CA146/06.

7      Nohe v R [2019] NZHC 1771.

her six children. The starting point was reduced to 12 months’ imprisonment on appeal; and

(d)       R v Adams, where the appellant was charged with two representative charges of intentional ill-treatment of a child and assaulting a child.8 The ill-treatment offending related to restricting the victim’s water intake and leaving him on the toilet for extended periods of time. The assault offending related to the forced-feeding and hitting of the victim. The offending occurred from when the victim was two months old to when he was three years old. The sentencing Judge adopted a starting point of two years six months’ imprisonment. The decision was unsuccessfully appealed to this Court on separate grounds.9

[40]   Mr Lange submitted that a cumulatively imposed six-month uplift would be appropriate for the ill-treatment charge, in line with the Crown’s position at first instance. Ms Girgis submitted the Crown’s position had changed since the sentencing in the District Court and was now that an appropriate starting point for the ill-treatment charge would be between 18 and 24 months’ imprisonment. This reasoning relied on the starting point in R v Adams while accounting for the additional aggravating features of the appellant's offending of the repeated use of an illicit substance (done not out of addition or incapacity but rather deliberate ill will, unlike Nohe) and the obvious impairment caused to the victim. Different to R v Adams however is that the offending here lasted in the range of months, not years. Taken together, the offending in that case is comparable to this one. However, in that case, the ill-treatment charge contributed only a portion of the eventual two and a half year starting point. Much like the decision under appeal, the way the individual charges together build the starting point was not outlined by the Judge.

[41]   Given these cases, I consider a starting point of 12 months’ imprisonment for the ill-treatment offending to be appropriate in these circumstances.

8      New Zealand Police v Adams DC Rotorua CRI-2013-063-001918, 1 November 2013.

9      R v Adams [2014] NZHC 42.

Charge 14 - Assault on a child (representative)

[42]The authorities relied on for the assault on a child conviction were:

(a)        S (CA801/2010) v R, where the Court imposed an 18-month starting point for offending involving three victims aged between two and 13.10 S had been convicted of three charges of assault on a child and one of assault with a weapon. The offending involved regular slapping of all the victims and the kicking and striking with a belt of one of the victims;

(b)       R v Haggar, where a three-year starting point was adopted for 17 convictions of assault on a child and two convictions of injuring with reckless regard over a seven-year period.11 The offending in that case involved slapping and hitting the children around the face and head with hands or a wooden spatula, punching the children, picking them up and throwing them, and more;

(c)        SM v Police, where two appellants appealed their sentences against the same six-year-old victim of assault with a blunt weapon and assault on a child.12 For the first appellant, a starting point of 20 months’ imprisonment was imposed for the assault with a blunt weapon convictions, which was uplifted by eight months for the assault on a child convictions. The second appellant was sentenced according to a 16-month starting point for the assault with a blunt instrument charge, uplifted by four months for the assault charge; and

(d)       Solicitor-General v SC, where offending over a two-year, five-month period involved assaults with weapons and injuring with reckless disregard led to a starting point on three years’ imprisonment.13

[43]   Mr Lange submitted the offending in each of the comparator cases for the assault charge is more serious and either involves the use of weapons, offending over

10     S (CA801/2010) v R [2011] NZCA 178.

11     R v Haggar [2014] NZHC 3082.

12     SM v Police [2016] NZHC 960.

13     Solicitor-General v SC [2017] NZHC 2252.

a greater time period and multiple victims, apart from SM v Police which only involved one victim.

[44]   Mr Lange submitted the appellant's offending is most similar to the offending in S(CA801/2010) v R, in which an 18-month starting point was adopted, but he highlighted that the offending in that case included striking with a belt, kicking in the stomach, three victims and a longer period of offending, and was therefore more serious. Additionally, it was submitted the offending in SM v Police was similar, although also more serious as it involved striking with a broom handle over a period of 20 months.

[45]   Mr Girgis submitted that the extent of the assault on a child offending justified an additional 18 to 20 months’ imprisonment. Mr Lange submitted that an appropriate starting point for this offending would be in the vicinity of 12 months’ imprisonment.

[46]   In my view, this representative charge warrants a substantial starting point and should have been the lead charge upon which the sentence was based. The victim was very young and dependant on the appellant, who was doing most of the victim’s parenting. The offending was a significant breach of this trust over some months, which must have caused her significant harm and suffering. That said, I agree with Mr Lange that the comparator cases, in which a weapon was used and the offending took place over several years, are more serious.

[47]   Ultimately, sentencing in cases like this is fact-dependant. I am not especially persuaded that cases involving more children for a longer period are necessarily comparable. All assaults on children are repugnant but, ultimately, it is the nature of the assaults, the frequency of them, the age of the victim and the known or likely impacts the assaults will have on them in later life. The child in this case was very young, in her formative years. I have already referred to the paediatrician's observations about the extent of the victim's injuries. The force-feeding of this victim was extreme. Given the severity of this offending, I consider a starting point of one year, nine months’ imprisonment is appropriate. This is close to the maximum available penalty but, in my view, given the severity and ongoing nature of this offending, it was warranted.

[48]   I observe that, had the remaining assault charges not been withdrawn, cumulative sentences to deal with the assaults on this child would have been justified. In this case, the starting point for the assaults does not reflect the severity of the offending or the appellant's culpability for it but, rather, is limited by the maximum sentence available given the way the charges were ultimately dealt with.

[49]   An adjusted starting point, taking into account the assault and ill-treatment charges, is one of 33 months' imprisonment. I am not persuaded to adjust this starting point to reflect totality given the matters to which I have referred.

[50]   Taking into account the five per cent discount for the guilty plea, the end sentence, based on the starting point I have adopted (rounded down), is one of 31 months' imprisonment, that is two years and seven months. The District Court Judge imposed a sentence of two years and 10 months' imprisonment. Because of the matters I have referred to in this judgment, I am persuaded that the end sentence was manifestly excessive but it may not have been had the plea not been accepted to only one of the assault charges.

Result

[51]   The appeal is allowed. The sentence of two years and 10 months' imprisonment is quashed and, in its place, I impose and end sentence of two years and seven months' imprisonment, divided as follows:

(a)        on the assault on a child charge, a sentence of one year and eight months' imprisonment; and

(b)       on the ill-treatment of a child charge, a cumulative sentence of 11 months' imprisonment.

Harland J

Solicitors:

Crown Solicitor, Timaru (for Respondent)

Counsel:
C J Lange, Barrister, Christchurch (for Appellant)