WAHO v R [2020] NZCA 526

WAHO v R [2020] NZCA 526 [27 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA155/2020[2020] NZCA 526BETWEEN RANDALL CLINTON WAHOAppellantAND THE QUEENRespondentHearing: 20 July 2020Court: Cooper, Peters and Whata JJCounsel: J D Lucas for AppellantC J Boshier for RespondentJudgment: 27 October 2020 at 2.15 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence imposed in the High Court of three years and three months'imprisonment is set aside.D A sentence of two years and 11 months' imprisonment is substituted.REASONS OF THE COURT(Given by Cooper J)[1] The appellant, Randall Waho, appeals against a sentence of three years andthree months' imprisonment imposed after he pleaded guilty to a charge of causinggrievous bodily harm with intent to injure.1 He argues that Mander J adopted a startingpoint that was too high having regard to the circumstances of the case and alsothe starting points adopted in respect of sentences imposed on co-offenders. He alsocontends that the Judge erred by failing to give proper consideration to personalmitigating circumstances, including:(a) his participation in a restorative justice process; and(b) matters raised in a report provided under s 27 of the Sentencing Act2002, said to mitigate his culpability for the offence.[2] It is also claimed that the discount of 20 per cent the Judge allowed in respectof the guilty plea was insufficient.[3] Mr Waho's appeal was filed 12 working days out of time. The delay is minorand has not caused any prejudice to the Crown. We grant the required extension oftime accordingly.Relevant facts[4] Mr Waho was sentenced on the basis of a summary of facts which recordedthat he and four others were members or associates of the Nomads gang. The summarystated that Mr Waho was sometimes referred to as the President of the Nomads gang.The Judge recorded that was in dispute, but for the purposes of sentencing acceptedthrough counsel that Mr Waho held a position entitling him to "some respect anddeference from other gang members" and that he was "in a position of influence".2The Judge noted that Mr Waho's leadership position in the gang meant that he wasable to direct people and arrange events. That bore directly on his level of culpability.[5] The victim, Mr Heappey, died as a result of an assault. He was an associate ofthe Nomads gang Christchurch chapter who was known to Mr Waho and the otherdefendants. In the days prior to Mr Heappey's death, members of the gang wereactively involved in trying to find him in relation to a debt he owed to Ms Leonie Cook1 Crimes Act 1961, ss 188(2) and 66.2 R v Waho [2020] NZHC 112 [High Court sentencing judgment] at [7].who was the daughter of Mr Waho's partner. Mr Heappey was said to have ignoredrepeated requests to meet in order to settle the debt. He indicated in a message sent toMr Waho that he acknowledged he had done wrong by the gang and that "punishment"was due to him. Mr Heappey, however, failed to keep appointments to meet anddiscuss the debt. After noting that Mr Waho considered Mr Heapey was disrespectinghim, the Judge continued:[10] Finally, after efforts by you, your stepdaughter and your mutualassociates, arrangements were made to collect Mr Heappey and take him backto an address. After you were informed that he had been located, arrangementswere made for another gang member and co-defendant, who was known tobe an enforcer within the gang, to attend at this address where Mr Heappeyhad been taken. At that location a physical confrontation took place betweenhim and two men which resulted in him being stabbed some 14 times. He diedfrom his wounds. Those two men have been charged with his murder.[11] You together with your stepdaughter and another man were chargedwith causing grievous bodily harm with intent to injure. The Crown considersthat charge adequately reflects your involvement in the plan to giveMr Heappey his "punishment", on the basis that you only ever intended forMr Heappey to receive a physical beating.[6] The two men involved in the stabbing were charged with murder.3 Two otherassociates of Mr Waho, namely Ms Cook and another gang member, Mr Sim, at whoseaddress the confrontation occurred, also pleaded guilty to the charge of causinggrievous bodily harm with intent to injure. Mr Sim was sentenced by Dunningham Jon 18 September 2019 to two years and three months' imprisonment.4 The startingpoint adopted was three years' imprisonment.5 Ms Cook was sentenced byDunningham J on 6 November 2019 to four years and three months' imprisonment.6That sentence comprised two years and three months' imprisonment for the charge ofgrievous bodily harm with intent to injure, and a cumulative sentence of two years'imprisonment for drug offending. The starting point for the grievous bodily harmcharge was three years and six months' imprisonment.73 Mr Webber pleaded guilty and was sentenced to life imprisonment with a minimum period ofimprisonment of 15 years: see R v Webber [2020] NZHC 2328. His co-defendant is yet to standtrial.4 R v Sim [2019] NZHC 2361.5 At [13].6 R v Cook [2019] NZHC 2890.7 At [17].[7] It is also relevant to note that on 20 August 2019 Mr Waho sought a dischargewithout conviction under s 147 of the Criminal Procedure Act 2011, on the basis thatthere was insufficient evidence on which a properly directed jury could convict himof the charge. The application was dismissed by Jagose J in an oral judgment deliveredon that day.8[8] Following that, Mr Waho sought a sentence indication. The indication wasgiven by Mander J on 4 November 2019. The Judge indicated a sentence of not morethan three years and seven months' imprisonment.9The sentence[9] The Judge identified four aggravating features of the offending.10 First, whilehe accepted that Mr Waho had not intended Mr Heappey to die and may not haveforeseen the level of violence which took place, he had participated in the chain ofevents that had as its objective the deliberate infliction of serious physical harm.Although not responsible for Mr Heappey's death, that outcome had resulted from theviolent plan that Mr Waho had participated in setting in motion. Secondly, there wasclear pre-meditation involved in the offending. Mr Waho was actively involved inarranging for Mr Heappey to be physically punished. He had sent the victim's phonenumber to the other members of the gang and gave instructions to another associatewhen the victim was tracked down. Thirdly, the Judge noted the feature of "ganginvolvement".11 He found the offending had involved "organised criminalretribution", which he considered to be an aggravating factor.12 Finally, the Judgenoted the group nature of the attack. He recorded that Mr Waho knew thatMr Heappey would be outnumbered when he was physically confronted.[10] The Judge summarised the position as follows:[16] In summary, your offending involved a group of gang members andassociates combining to mete out violence. There is the hallmark of organisedcriminal offending and, I accept, an element of vigilante justice that you wereinvolved in coordinating. While it was not your intention, the fact remains8 R v Waho [2019] NZHC 2050.9 R v Waho [2019] NZHC 2848 [High Court sentence indication] at [15].10 High Court sentencing judgment, above n 2, at [14].11 At [14(c)].12 At [14(c)] referring to s 9(1)(hb) of the Sentencing Act 2002.that Mr Heappey lost his life as a consequence. The relative triviality of thegrievance that involved you and others only underlines, as I said to you on theprevious occasion, the senselessness of the violence and the senselessnessof Mr Heappey's death.[13][11] The Judge noted there was no dispute the offending fell within band 3 of thebands identified in this Court's guideline judgment, Nuku v R.14 He considered thatthe appropriate starting point was one of four years' imprisonment.15 That wouldappropriately recognise Mr Waho's status within the gang hierarchy, his role in theevents that ultimately led to the attack on Mr Heappey, and the level of influence thathe had been able to exercise, at least initially, over the participants. The Judgerecorded his acceptance of the Crown's submission that Mr Waho had effectivelycoordinated the assault.16 This had included allocating the task of administeringMr Heappey's "punishment" to a fellow gang member, and sending Ms Cook to collectthat person and take him to the location to which Mr Heappey had been brought underfalse pretences, also at Mr Waho's direction.[12] The Judge referred to Mr Waho's significant criminal history, including90 previous convictions many of which were for violence, some of which were veryserious.17 He considered an uplift of six months' imprisonment appropriate to reflectthis. That brought the sentence to four years and six months' imprisonment, beforethe consideration of potentially mitigating circumstances.[13] The Judge recorded that Mr Waho, then 46 years of age, had been associatedwith or a member of a gang since his teenage years. The Judge noted that afterMr Waho's parents died, he was placed in foster care before beginning to live on thestreets at the age of 15. He had led a life that was "essentially dominated by [his]criminal offending and gang affiliations".18 There had been periods of employment inthe painting and plastering trade, but Mr Waho was unemployed at the time ofthe offending.13 The reference to the previous occasion was to the sentencing indication given on 4 November2019, to which we have referred. See High Court sentencing indication, above n 9.14 High Court sentencing judgment, above n 2, at [17] referring to Nuku v R [2012] NZCA 584,[2013] 2 NZLR 39.15 At [17].16 At [18].17 At [19].18 At [20].[14] The Judge said that he had taken into account a report provided under s 27 ofthe Sentencing Act and noted that Mr Waho had engaged in a restorative justiceconference with Mr Heappey's brother. The Judge acknowledged that had resulted ina "positive outcome" and a degree of reconciliation.19 He also acknowledged therestorative justice process had included expressions of sorrow for Mr Heappey's deathdirectly to his brother.20 He accepted that the s 27 report showed Mr Waho haddemonstrated greater insight into the offending than had previously been apparent.[15] The Judge allowed a deduction of five months from the starting point, whichhe considered would properly take into account all matters of personal mitigationincluding the matters referred to in the cultural report that emphasised Mr Waho'sdeprived background when young and the "lack of whānau support" which hadalienated Mr Waho "from the type of cultural support that perhaps would have avoidedthe negative impact of [his] heavy involvement in the gangs throughout [his] life".21[16] In relation to the guilty plea discount, the Judge noted it had come some11 months after Mr Waho's arrest. In this respect, the Judge maintained that the20 per cent reduction he had applied at the sentence indication was the most that couldbe allowed.22[17] In the result, the final sentence was three years and three months'imprisonment.23The appealThe starting point[18] Mr Lucas submits that the starting point of four years' imprisonment was toohigh, having regard to the culpability of Mr Waho's co-offenders. He argues thatMr Waho's involvement before the night of the attack had been limited to providing19 At [21].20 At [23].21 At [23].22 At [24].23 At [25].information to the co-offenders in the form of a cell phone number and "an incentiveto locate the victim regarding the debt owed to Ms Cook".24[19] Mr Lucas emphasises that Mr Waho had not been present when the attack tookplace and contrasts his role with that of Ms Cook who had been actively involved intracking down the victim on the night he was attacked. She had also arranged for thetwo people who had actually committed the murder to be driven to the relevant addresson the night. Ms Cook had been sentenced on the basis of a starting point of three anda half years' imprisonment and Mr Lucas submits that Mr Waho's culpability shouldnot have been regarded as more serious.[20] The Judge however specifically referred to the comparative culpability ofMr Waho and Ms Cook in giving his sentence indication. In that decision, the Judgenoted that the starting point of four years' imprisonment was six months higher thanthe starting point that had been adopted in respect of Ms Cook. He explained:25 I consider that is appropriate in order to recognise your status within thegang hierarchy, your role in the events that ultimately led to the attack onMr Heappey, and the level of influence that you were able to exercise, at leastinitially, over the other participants.[21] The Judge was entitled to adopt that approach and we do not consider itresulted in a sentence which was disproportionate compared with the sentenceimposed on Ms Cook.Personal mitigating circumstances[22] The second main limb of the appeal is based on personal mitigatingcircumstances. Mr Lucas submits the Judge had wrongly conflated and combinedissues concerning Mr Waho's background personal circumstances, and remorse. Theconsequence was that the appropriate discounts for both mitigating personal factorswere attenuated.[23] The Judge's allowance of five months for mitigating personal circumstancesrepresented a discount of a little over 10 per cent of the starting point. It was intended24 The summary of facts did not detail what the "incentive" was.25 High Court sentence indication, above n 2, at [10].to cover both remorse and participation in the restorative justice conference as well asthe account given of Mr Waho's deprived background in the s 27 report. We haveconcluded that a greater allowance would have been appropriate.[24] Mr Waho was able to rely on a comprehensive s 27 report by Ms Monica Lei,employed as a Māori Health Adviser by the Canterbury District Health Board for thelast 10 years. Her report recorded that Mr Waho was the youngest of his parents' 10children but after an initially happy start to life he lost both parents at the age of 12.He then was placed into foster care and had no contact with his wider whānau fromage 12 to 15. At the age of 15, Mr Waho went to live with his uncle, who was thefounder of the Nomads gang. This resulted in him being "raised by the gang".Mr Waho described his home environment during this period as "scary" and said thathe had witnessed vicious gang beatings. He became a patched member of the gang atthe age of 16. All five of his brothers were also patched members of the gang and itseemed he had no choice but to join them. He had his first child when he was 16 andanother the following year. Subsequently, he had five more children.[25] Mr Waho told Mr Lei that he had spent the last 22 years in and out of prison.He claimed that his early crimes were related to gang obligations, a claim which ofcourse does not excuse the offending, although going some way to explaining it.His longest period out of prison was some five years, immediately prior to the currentoffending. He also reported having been a user of methamphetamine on and off fora number of years.[26] Ms Lei analysed Mr Waho's circumstances in the context of the Māori modelof health and wellbeing outlined in Te Whare Tapa Whā.26 That analysis considers the"four cornerstones of health and wellbeing" from a Māori perspective: taha whānau(family health), taha hinengaro (psychological and emotional health), taha tinana(physical health) and taha wairua (spiritual health). In each case, Ms Lei concludedthat Mr Waho's life had been filled with negative influences. She expressed the viewthat Mr Waho's whānau background had adversely affected his ability to cope andresulted in poor decision making throughout his life: he had been deprived of a support26 M H Durie "A Māori Perspective of Health" (1985) 20 Soc Sci Med 483.system and this had created "instability across each of the four dimensions". Sheadded that Mr Waho's early life was a "roadmap to offending".[27] She concluded:Mr Waho's early loss of both parents, abuse suffered whilst in foster care,whānau breakdown, gang culture environment, early and long-term substanceabuse, lack of education and vocational skills and cultural disconnectednesshave compounded to trigger detrimental coping strategies leading him to poordecision-making throughout most of his life including the commissioning ofthe current offices.[28] In Carr v R, this Court addressed the position of Māori offenderswhose upbringing was affected by poverty, violence, racism, dislocation and ganginvolvement.27 Reference was made to this Court's guideline judgment in the field ofmethamphetamine offending in Zhang v R holding that the principles it discussed werenot limited to serious drug offences.28 This Court also summarised the effect of theHigh Court judgments in Solicitor-General v Heta and R v Rakuraku.29 We do notrepeat the summary here. It is sufficient to say it was recognised in Carr v R thatwhere a s 27 report gives a credible account of matters which may be considered tohave diminished moral culpability and impaired choice so as to establish a causativecontribution to offending, that should have an effect on the sentencing outcome.30We consider there is such a causative contribution here.[29] While the gravity of offending may temper the extent of any allowances madefor such considerations, issues such as those discussed in the s 27 report in this casemust have a discernible impact on the sentencing outcome. The Court in Carr v Remphasised the need to apply ss 7(1)(h) and 8(i) of the Sentencing Act as well as thoseprovisions of the Act requiring sentencing judges to hold offenders accountable,promote in them a sense of responsibility and denounce criminal conduct.31Section 7(1)(h) states one of the purposes of sentencing is to assist in the offender'srehabilitation and reintegration, and s 8(i) states the court "must take into account the27 Carr v R [2020] NZCA 357.28 At [60] and [65] referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.29 At [58]–[60] referring to Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; andR v Rakuraku [2014] NZHC 3270.30 At [65].31 At [66].offender's personal, family, whānau, community, and cultural background in imposinga sentence with a partly or wholly rehabilitative purpose" (emphasis added).[30] Ms Boshier submits there was significance in the fact that Mr Waho had notbeen sentenced to imprisonment after April 2009 until August 2017. During this time,Mr Waho told Ms Lei he had entered into a new relationship and had a son. He hadsecured employment as a painter and described himself as a "family man and livingthe family life". Ms Boshier noted that despite these considerations, Mr Waho wasnot dissuaded from resuming an active role in the gang. She referred to statementsalso made to Ms Lei that he became "bored of family life" and admitting he hadresumed an active role in the gang. That brought with it a deterioration inhis relationship, and there were episodes of domestic violence resulting in protectionorders being put in place. The inference Ms Boshier essentially invited us to take wasthat having demonstrated that he could live a life free of crime and violence for aperiod, Mr Waho deliberately chose to resume his old lifestyle and this ultimatelyresulted in the offending for which he was brought before the Court in the present case.[31] The fact is that, notwithstanding the period in which he was able to stay out oftrouble, Mr Waho was not able to continue along that path. Ms Boshier is right,of course, and we accept, that he chose to reoffend. But for the purposes of sentencingthat is not the only relevant consideration. The question why he chose to reoffendmust also be addressed. We consider there is a substantial explanation for that inthe matters set out at length in the s 27 report. Recognising that is what the court isrequired to do under s 8(i) of the Sentencing Act.[32] In all the circumstances, we are satisfied that the five months the Judge allowedfor personal mitigating circumstances was insufficient.[33] We would allow a deduction of five per cent for remorse and participation inthe restorative justice process, and a 15 per cent deduction for the matters addressedin the s 27 report and discussed above. The seriousness of the offending and itsconsequences prevent a larger discount. Applied to the starting point of four years'imprisonment, this would result in a combined allowance of ten months (rounded up),or five months longer than the Judge allowed. In a sentence of the length imposed,the difference is sufficiently significant to warrant altering it. That would reducethe sentence from three years and three months' imprisonment to two years and11 months' imprisonment if the 20 per cent discount for the guilty plea were left inplace.32Discount for guilty plea[34] Mr Lucas argued that the Judge should have given Mr Waho a full credit of25 per cent for his guilty plea.33[35] The Judge addressed this issue briefly in his sentencing remarks.34He recorded Mr Lucas' submission that a full 25 per cent discount should be allowedbut said that he did not consider that the plea was entered at the first reasonableavailable opportunity. It had come some 11 months after Mr Waho was arrested.He considered that any greater allowance was inappropriate.[36] The submission to the contrary has as its only basis the fact that Dunningham Jallowed a discount of 25 per cent for Mr Sim and Ms Cook when she sentenced themin, respectively, September and November 2019. Mr Lucas acknowledges thatMr Waho, unlike the two co-defendants, had made an application for the chargeagainst him to be dismissed under s 147 of the Criminal Procedure Act, the applicationdismissed by Jagose J.35 But he contends that it made little difference to the timing ofthe pleas in terms of the stage of the proceedings.[37] The result of Mander J's approach is that Mr Waho has been treated slightlyless generously in terms of the guilty plea discount than Ms Cook and Mr Sim.We agree the fact of the application for dismissal of the charge does not justifythe difference, but nor did the Judge rely on that. However, the difference is not suchas would cause this Court to disturb Mander J's approach for disparity reasons.36The Judge was obviously aware of the discount that had been given to32 Calculating the 20 per cent discount for the guilty plea in accordance with this Court's judgmentin Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].33 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75], where the Supreme Court heldthat discounts for a guilty plea should not exceed 25 per cent.34 High Court sentencing judgment, above n 2, at [24].35 See above at [7].36 See McFarlane v R [2012] NZCA 317 at [24].the co-defendants. He simply took the view that a 25 per cent discount should not begiven because the plea had not been made at the first reasonable opportunity. That wasa view he was entitled to take. His reasoning discloses no error and the disparitybetween the guilty plea discount afforded to Mr Waho and to his co-offenders is notso great as to require correction on appeal.Result[38] The application for an extension of time to appeal is granted.[39] For the reasons set out, the appeal against sentence is allowed.[40] The sentence imposed in the High Court of three years and three months'imprisonment is set aside.[41] A sentence of two years and 11 months' imprisonment is substituted.Solicitors:Crown Solicitor, Christchurch for Respondent