Webby v The Queen - [2021] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA48/2020
[2021] NZCA 234

BETWEEN	JAMES TAYLOR MARTIN WEBBY Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2021
Court:	Clifford, Simon France and Edwards JJ
Counsel:	E J Forster and H A Neumegen for Appellant M H Cooke for Respondent
Judgment:	4 June 2021 at 10.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, James Webby, pleaded guilty to the murder of Alex Latimer, and to two charges of aggravated robbery, one of arson and one of attempting to pervert the course of justice. Mr Webby was sentenced by Dobson J to life imprisonment with a minimum non-parole period (MPI) of 17 years and nine months.[1]
[1]R v Lothian [2019] NZHC 2938 [Judgment under appeal].
Mr Webby now brings an as-of right appeal against that sentence.[2] He says the Judge erred in the way he determined Mr Webby’s MPI, with the result his sentence is manifestly excessive. Mr Webby says his MPI should be no greater than 17 years.

Background

[2]Criminal Procedure Act 2011, s 244.

Mr Webby was charged with the murder of Mr Latimer together with an associate, Mr Lothian. Mr Webby’s trial was due to start on 11 November 2019. Some months earlier, Dobson J had given Mr Lothian a sentencing indication. Mr Lothian had accepted that sentencing indication. As we understand it, Mr Lothian was to be sentenced immediately before Mr Webby’s trial commenced.
On 11 November 2019, and before Mr Lothian had been sentenced, counsel for Mr Webby sought an informal indication from the Judge as to the extent to which the Judge’s analysis in Mr Lothian’s sentencing indication would apply if Mr Webby pleaded guilty. After discussions, Mr Webby entered a guilty plea and the Judge then proceeded to sentence both Mr Lothian and Mr Webby.
In doing so, the Judge first set out the circumstances of their offending and, in particular, the murder of Mr Latimer. For the purposes of this appeal, those circumstances can be summarised as follows.
Mr Latimer was a small-scale dealer in cannabis and methamphetamine. In January 2017 either or both of Mr Lothian and Mr Webby had purchased drugs from Mr Latimer. Mr Latimer considered he was owed money by Mr Lothian. Mr Latimer made enquiries about Mr Lothian at Mr Webby’s flat. One of Mr Webby’s flatmates told Mr Lothian about those enquiries, prompting Mr Lothian to go to that flat. When Mr Lothian arrived, he and Mr Webby attacked and beat Mr Latimer, taking a bag from him containing drugs and money. Mr Latimer was picked up by his brother who observed he had a black eye; his face was bleeding and swollen and he had cuts to his head and face.
It would not appear Mr Latimer had any further dealings with Mr Lothian or Mr Webby until the night of his murder.
That evening, Mr Lothian,…

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 Webby v The Queen

Details

AGLC: Webby v The Queen [2021] NZCA 234
Case: [2021] NZCA 234
Decision Date: 4 June 2021 at 10.00 am

CaseChat Overview and Summary

James Webby, the appellant, brought an as-of-right appeal against his sentence for the murder of Alex Latimer, two charges of aggravated robbery, one of arson, and one of attempting to pervert the course of justice. Webby pleaded guilty to all charges and was sentenced by Dobson J to life imprisonment with a minimum non-parole period (MPI) of 17 years and nine months. Webby argued that the sentence was manifestly excessive and that the MPI should be no greater than 17 years. The key issue for the court was whether the sentencing judge, Dobson J, erred in the way he determined Webby’s MPI, and if the sentence imposed was within the appropriate range.

The court held that in sentencing appeals, the focus is on the sentence imposed rather than the methodology used to determine it. If the sentence is within the appropriate range, alleged errors in the methodology or approach will not sustain the appeal. The court also noted that while the three-step approach to the application of s 104 is important, a sentencing judge is not required to always expressly reason using that methodology. The court concluded that the sentence imposed on Webby was within the appropriate range and that Dobson J did not err in sentencing Webby.

The appeal was dismissed, and Webby’s sentence stands as imposed by Dobson J.

Orders