WATENE v R [2023] NZHC 441

WATENE v R [2023] NZHC 441 [5 April 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-43[2023] NZHC 441BETWEEN TANIA LOUISE NGAHINA WATENEAppellantAND THE KINGRespondentHearing: 6 October 2022, 19 October 2022, 25 November 2022,19 December 2022 and 8 March 2023 and 14 March 2023Counsel: A R Laurenson for AppellantH Bullock for RespondentJudgment: 8 March 2023Re-issued:Re-issued:28 March 20235 April 2023JUDGMENT OF ISAC J[Appeal against sentence]Introduction[1] Ms Watene1 appeals a sentence of three years and six months' imprisonmenttogether with an order for reparation of $150,0002 imposed on charges of arson,3assault with a weapon,4 and refusing to permit a blood specimen to be taken whenrequired (third offence).51 The appellant is identified in the Court papers and decisions below as Tania Louise NgahinaCresswell. Ms Watene confirmed at the hearing on 8 March 2023 that she prefers to be known bythe surname Watene. I have adopted that name in this judgment.2 R v Watene (Cresswell) [2022] NZDC 15964 [Sentencing Notes].3 Crimes Act 1961, s 267(1)(b); maximum sentence of 14 years' imprisonment.4 Section 202C; maximum sentence of five years' imprisonment.5 Land Transport Act 1998, ss 60(1)(b), 60(3) and 72(1)(a); maximum sentence of two years'imprisonment or a $6,000 fine, and mandatory disqualification of more than one year.[2] The original grounds of appeal were that the five-year starting point adoptedby the Judge was too high, and inadequate discounts were provided for personalcircumstances, remorse and previous good character. Finally, it was submitted that theorder for reparation was excessive.[3] Following her sentencing Ms Watene applied for bail pending appeal. This wasgranted by the District Court on 19 August 2022.6 It follows that she has remained inthe community and in employment since sentencing without further incident.[4] When Ms Watene first appeared in this Court on 25 October 2022, I raised withMr Laurenson, for Ms Watene, whether she was in a position to make a substantialreparation payment either through recourse to her KiwiSaver fund, or whānau, or both.It seemed that the only realistic way of securing a just outcome which saw the financialharm caused to the victim addressed in some modest way was a community basedsentence that would keep Ms Watene in employment and with the means of makingreparation. Unfortunately, this possibility has resulted in significant delay, and fourfurther hearings.[5] In a judgment of 8 March 2023, I allowed Ms Watene's appeal and sentencedher to home detention, having heard from counsel that her proposed home detentionaddress remained available. The following day counsel advised the Court that this wasno longer the case. While Ms Watene had an alternative address available, CommunityCorrections would require a further two weeks to assess its suitability. In light of this,on 9 March 2023 I recalled my judgment and remanded Ms Watene on bail untilfurther order.[6] On 28 March 2023, Community Corrections confirmed that the alternativehome detention is suitable and technically feasible. Given this, I re-issue my judgmentof 8 March 2023, with necessary amendments.6 R v Watene (Cresswell) [2022] NZDC 18732 [Bail Judgment].The offending[7] The facts of the offending are set out in a decision of Judge Hikaka of 7 July2022, in which he found Ms Watene guilty of assault with a weapon,7 and in thejudgment under appeal.8 A summary follows.[8] Ms Watene and the victim had been in a relationship for approximately eightyears. They separated in November 2020 but renewed their relationship by ChristmasEve of the same year, about three weeks before the events leading to the charges.[9] On 15 January 2021, sometime after 9 pm, the victim collected Ms Watenefrom her friend's house where she had been drinking and returned to his house nearby.Ms Watene was heavily intoxicated, having consumed around 12 premixed bourbondrinks. The victim had also been drinking.[10] An argument developed when the victim received a text message from a femalefriend. Ms Watene thought the victim was having a relationship with the woman,although that was not the case. The victim then dropped Ms Watene back to herfriend's house and returned home.[11] Shortly thereafter, Ms Watene made her way back to the victim's property, itseems in a drunken and jealous rage. She took a large piece of timber from a pile ofoffcuts outside the victim's house, and struck him on the forehead, causing injuries tohis face. The victim then threw a punch at Ms Watene's head to prevent a furtherattack. Ms Watene had marks to her forehead and eye consistent with such a blow.[12] A heated verbal exchange ensued, with both parties yelling abuse at each other.The victim then called 111, and much of what was said was recorded and produced inevidence.[13] While the victim was on the phone to the emergency operator, Ms Watenebegan moving through the house, setting fire to the curtains with a lighter. She could7 R v Watene (Cresswell) [2022] NZDC 12933 [Assault Judgment].8 Sentencing Notes, above n 2.be heard taunting the victim and suggesting that she would tell the Police that thevictim had been the abuser.[14] Police and the fire service attended. Ms Watene had to be forcibly removedfrom the victim's home. He sustained a significant burn to one of his arms trying toput out the fire, requiring hospital treatment and a skin-graft.[15] The victim had purchased the house with financial assistance from his father.He had put an enormous amount of time and money into an extensive renovation. Itseems that work had only just been completed when Ms Watene set fire to the home.[16] The fire completely destroyed the house. It was uninsured. And as the buildingwas on Māori leasehold land, the victim has no interest in the underlying land. It isestimated that the pre-fire value of the property was between $145,000 and $165,000.[17] It is therefore no exaggeration for the victim to say:Tania [Watene] ruined my life. She burned everything I owned to the ground.Judgment under appeal[18] Judge Hikaka sentenced Ms Watene on 19 August 2022. At the outset, herecorded Ms Watene had pleaded guilty that day to refusing to give blood to an officerafter failing a breath screening test on 22 July 2022.[19] After outlining the facts and circumstances of the offending, the Judge set thestarting point for all three charges at five years' imprisonment.9[20] From there he applied a 20 per cent discount for the early guilty plea to thecharge of arson.10 That was said to bring the sentence down to three years and ninemonths.11 However, this appears to be a minor miscalculation as a 20 per cent discountfrom a five-year starting point results in four years' imprisonment. Any arithmeticalerror does not matter because it broke in Ms Watene's favour.9 At [37].10 At [38].11 At [39].[21] Finally, the Judge provided a further discrete three-month discount for what heconsidered could be seen as "a gross error of judgment" and Ms Watene's apparentdesire to "take revenge [given her] perception of what had occurred outside of [her]relationship with the victim".[22] As a result, he arrived at an end sentence of three years and six months'imprisonment. In total, that represented a 30 per cent discount from the starting point.[23] On the drink-driving charge, the Judge sentenced Ms Watene to one months'imprisonment to be served concurrently, and disqualified her from driving for one yearand one day, the minimum required by law given it was her third offence.12[24] Turning to reparation, the Judge concluded:13I set reparation at $150,000, but to be reviewed at a later time when moreinformation should be available as comments have been made that you haveno savings but there is also information that you do in fact have savings, notreadily accessible, more by way of KiwiSaver superannuation. I have no ideawhat amount could be applied from that toward reparation. I am mindful ofrestrictions on the amount that can be ordered for reparation and that is why Iwant to review that at a later time at counsel's application. That amount is lessthan the loss caused by your actions.Standard of appeal[25] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentencemust only be allowed if the Court is satisfied that, for any reason, there was a materialerror in the sentence imposed and a different sentence should have been imposed.14The focus is on the final sentence reached. Although s 250 does not use the expression"manifestly excessive", it is a principle that is well-established in the Court's approachto determining the extent of the error in sentence appeals.1512 At [38] and [40]; Land Transport Act 1998, s 60(3)(b).13 At [44].14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].15 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].The sentence appealStarting point[26] There is no tariff case for arson, reflecting the broad variety of circumstancesin which it can occur.16[27] Mr Laurenson, for Ms Watene, argued that the starting point should have beenno higher than four years. He says that the present offending is less serious than arsonsin which starting points of five or more years were imposed. In R v Daniels, a fiveyear starting point was adopted where the defendant locked the main exit of the houseand set the fire while the victim was sleeping, before waking him up by shouting andunlocking the door and leaving with the victim.17 In Ollerenshaw v R, the defendantbroke into the house of his former partner, stole expensive, irreplaceable jewellery,and set fire to the house "with the purpose of causing her very significant and lastinginjury", in which he succeeded.18 While noting it was "unquestionably severe", theCourt of Appeal upheld a starting point of six years.19 In R v Skeens, the appellant,after threatening to burn down his father's house and kill him, lit a fire in the housewhile his father and two other people were asleep.20 While the occupants werefortunately able to wake up and extinguish the fire before serious damage could becaused, the risk to human life was serious. A starting point of five years was upheldby the Court of Appeal. Finally, Mr Laurenson pointed to Erickson v R where the Courtof Appeal noted that the common range for starting points in arson cases is betweenthree and five years,21 noting that the sentence imposed by the District Court was rightat the top of that range.[28] Unlike those cases, it was submitted there was no premeditation inMs Watene's offending. The appellant lit the fires spontaneously and in a confusedand irrational state. Further, the appellant had no relevant previous convictions and the16 R v Z CA139/00, 27 June 2000.17 R v Daniels [2017] NZHC 2805.18 Ollerenshaw v R [2010] NZCA 32.19 At [19].20 R v Skeens CA341/01.21 Erickson v R [2012] NZCA 449 at [11].danger to the victim was comparatively low, given he was conscious and aware of thefire.[29] Like the Judge, I consider that the aggravating factors of the offending werethe use of significant violence, the extent of the damage caused by the fire and theburns it caused to the victim, the risk of danger the fire posed to others, includingpolice and members of the fire service, and the apparent retribution involved. Althoughno doubt driven by drunken jealousy, there was an element of cruelty in the arson.22As the Judge noted, the appellant "was the provocative one, the more aggressive ofthe two and intent on not only provoking the complainant but also looking to attributeblame to him".23[30] Having regard to these circumstances, and in light of the cases cited bycounsel,24 I am satisfied that the starting point of five years adopted by the Judge wasappropriate and within range.[31] Mr Laurenson's challenge to the starting point was focussed on a comparisonwith other arson cases involving a five-year starting point. The difficulty with this isthat it is not an accurate comparison; that is because the Judge adopted the overallstarting point to reflect the totality of the offending, which included a serious assault.A starting point of 12-months' imprisonment for Ms Watene's violence alone wouldhave been within range, and a further discrete but modest uplift was also required toreflect the alcohol related driving charge. It follows that while the Judge did notprovide a break-down of the overall starting point, it seems likely that the arsonattracted no more than four years' imprisonment on its own. No criticism could bemade of that figure in light of the authorities, or indeed the overall starting point giventhe totality of the offending.22 Assault Judgment at [22]; and Sentencing Notes at [19]. While the Judge clearly found them usefulin reaching his views on liability and sentencing, neither the audio recording or transcript of the111 call made by the victim on the night of the fire has been made available to this Court on appeal.23 Assault Judgment at [22] at [32].24 R v Daniels, above n x; Ollerenshaw v R, above n x, Erickson v R [2012] NZCA 49; Howarth v R[2010] NZCA 523; Hall v R [2021] NZCA 314; and R v Skeens CA341/01, 26 February 2002.Section 27 report[32] Mr Laurenson submitted that Ms Watene's s 27 report reveals a history ofdomestic violence. A discount ought to have been provided given the Judge's commentthat "I am satisfied there is a link between alcohol abuse, violence and thisoffending".25[33] However, that submission ignores the Judge's conclusion on the s 27 report:26I do not see any connection between your upbringing and your behaviour onthis occasion other than what others have recognised is issue with alcoholabuse over the years and you have not addressed that issue.[34] The evidence suggests that it was Ms Watene who was the aggressor. While Iaccept Ms Watene has trust issues and that there is information in the report suggestingsome exposure to domestic violence, which might explain why she became so angryon 15 January 2021, there is nothing which diminishes her culpability for theoffending. Rather, the evidence points to the conclusion that the offending arose inlarge part as a result of Ms Watene's issues with alcohol. That is reinforced by herthree drink-driving offences, the most recent of which occurred while she was on bailfor the arson and assault charges. They establish a pattern of drunken offending. Andas the report writer noted, Ms Watene was known to become violent when intoxicated.[35] I do not accept that factors arising from the s 27 report warranted any discretediscount.Remorse[36] Mr Laurenson argued a discount ought to have been made for remorse. Henotes the appellant wanted to attend a restorative justice course, but that the victim didnot. He submitted that Ms Watene's remorse was genuine, pointing to the pre-sentencereport where she is quoted as saying "I feel absolutely disgusted that I could even dosomething like that, it is not me, it is so out of character for me to do something likethat".25 Sentencing Notes at [31].26 At [35].[37] While I agree that at the time of sentencing the Judge was correct not to makean allowance for remorse, in light of Ms Watene's subsequent conduct, particularlythe payment of reparation, I am satisfied that she has demonstrated genuine remorseand that this warrants a further discrete discount. I turn shortly to consider these issues.Previous good character[38] The appellant submits that as she is 58 years of age, and only has two previousconvictions for driving with excess breath alcohol, she should be treated by the Courtas a first offender. She points to character references and the s 27 which demonstratesthat her actions were out of character.[39] While I readily accept this very serious offending was out of character forMs Watene, that is quite a different matter from a discount for previous good character.Unfortunately she is not a first offender. Her previous drink-driving convictionssuggest a pattern of loss of self-control and poor judgment when drinking that has ledher to offend now on a number of occasions. That pattern has now persisted into muchmore serious offending and harm to others. It is troubling that despite the clearindications of problematic drinking, Ms Watene does not appear to have engaged inany form of treatment for dangerous drinking behaviour.[40] Regardless, the Judge provided a three month (or five per cent) discount forMs Watene's "gross error of judgment". This might be viewed as a discount forprevious good character, or a recognition that the offending was out of character. I donot consider any further reduction could be warranted.[41] In conclusion, I am not satisfied that there has been an error in the approachtaken by the sentencing Judge. However, for the reasons that follow, I consider thatthere has been a change of circumstances after sentencing which requires me toconsider afresh the appropriate sentence.Reparation[42] Section 12 of the Sentencing Act 2002 provides that sentences of reparationshould be made unless they would cause undue hardship. Undue hardship has beendescribed as something more than the ordinary concept of hardship such as excessivehardship or hardship greater than the circumstances warrant.27[43] In Guinness v Police, Woodhouse J reviewed the relevant authorities andconcluded that undue hardship will generally be found where an order for reparationcannot be met within five years.28[44] Ms Watene is 58 years old, and currently works in a very physical job at themeat works in Midhurst. A reparation report provided to the Court, based on aninterview with her and her payslip information, advises:Her income and expenditure allowed for Ms [Watene] to pay reparation at$100 per week without causing any financial hardship on her. Ms [Watene]advised that she has seven years of employment left before retirement age andthat she was committed to paying this amount up until that time. She was notsure what would happen after she is no longer working.[45] On behalf of the Crown, Ms Bullock accepts that reparation order for $150,000is excessive. If the appellant were to pay $100 per week for her remaining years inemployment, the reparation amount would total approximately $33,000. Further,Ms Bullock notes that the report does not outline whether Ms Watene would be ableto make such payments while she is in prison. It is submitted that reparation remainsappropriate regardless of whether a term of imprisonment is imposed in order torecognise the harm caused to the victim.[46] Since her sentencing, Ms Watene has made voluntary payments by way ofamends of $6,900. Of this sum, $5,000 has been made available by her KiwiSaverscheme provider (out of a total of a little over $8,000). I am advised the sum of $5,000was the maximum amount the fund provider could release under a "substantialhardship" ground.[47] The balance of these payments, $1,900, represents Ms Watene's efforts to pay$100 a week out of the wages she earns. She says she is committed to continuing topay reparation at this rate until she reaches the age of retirement; that is, for a further27 Hunt v Police HC Wellington AP232/99, 29 September 1999.28 Guinness v Police [2015] NZHC 883 at [17] and [18).six-and-a-half years. That prospect goes beyond the threshold commonly thought toraise the prospect of undue hardship, and it is to Ms Watene's credit that she is preparedto make that offer nevertheless.[48] Given:(a) Ms Watene's efforts to make a lump-sum reparation payment to thevictim;(b) her payments of reparation since she was sentenced in August 2022;and(c) the interests of the victim and the community in keeping Ms Watene inemployment so she can continue in her work and make furtherreparation payments to her victim—I am satisfied that there has been a material change of circumstances since she wassentenced in the District Court.[49] I am also satisfied, in light of the authorities I have noted, that the reparationorder imposed by the District Court was manifestly excessive. It follows thatsentencing falls to be undertaken afresh, although in doing so I respectfully adopt thestarting point and all but one of the discounts applied by Judge Hikaka.The appropriate sentence[50] Under the Sentencing Act the court is required to take into account an offer ofamends or any measure taken by the appellant to make good the harm that hasoccurred.29 In deciding whether and to what extent those matters should be taken intoaccount, the court must also take into account whether the offer was genuine andcapable of performance, and whether it has been accepted by the victim as expiatingor mitigating the wrong. If, despite any offer or payment of reparation, a court29 Sentencing Act 2002, ss 8(g), 8(j) and 10(1) and (2).determines that it is appropriate to impose a sentence, it must take those offers andpayments into account when determining the appropriate sentence.30[51] Ms Bullock submitted that discounts for reparation tend to range between fiveand 20 per cent, depending on the circumstances.31 She submitted that in the presentcase Ms Watene's contributions justify a discount of between five and 10 per cent.[52] The authorities cited in Hall's Sentencing suggest that discounts of as much as50 per cent have been made for offers of amends and reparation payments.32 As theCourt of Appeal observed in R v Clotworthy, the appropriate level of discount willdepend on the facts of the case and a close assessment of the relevant sentencingconsiderations.33 The nature of the offer, the effect of payment on the offender, andwhether the offer is voluntary will be relevant. A voluntary payment (amends) isdifferent to a payment ordered by the court (reparation),34 and may indicate remorseand a desire to atone especially if it is likely to cause hardship.35 The nature of theoffending and the harm caused, the extent to which the offer of amends mitigates thevictim's loss, and whether the victim accepts the offer, are also factors likely to behighly relevant. Whereas payments by perpetrators of, for instance, sexual offendinghave often been given little weight,36 payments in amends appear to have beenafforded significantly more weight in offending that primarily involves financial loss,30 Section 10(3).31 In Commissioner of Inland Revenue v Naisbitt [2017] NZDC 25304 of 21 per cent was allowed,although that case involved an order for reparation in full of almost $140,000).32 Hall's Sentencing (online looselef ed, LexisNexis, 2023) at [SA10.1]–[SA10.3]; R v ThackerCA392/90, 22 March 1991, sentence of 18 months' imprisonment reduced to nine monthsfollowing payment of $16,000 by amends (50 per cent); R v Farrell CA303/86, 22 May 1987,sentence reduced from three years' imprisonment to 18 months where $4,000 payment madetoward farmer's $22,000 losses and offender entered voluntary work arrangement with victim(50 per cent). See also Koya v Police HC Auckland AP 133/92, 12 June 1992, sentence of 18months' imprisonment reduced to 12 months where reparation of $65,000 paid toward $90,000obtained through fraud (33 per cent).33 R v Clotworthy (1998) 15 CRNZ 651, sentence of five years' imprisonment reduced to three where$5,000 paid immediately to victim and $10,000 to be paid in instalments (40 per cent, includingguilty plea).34 Davies v Police [2009] NZSC 47; [2009] 3 NZLR 189 at [31].35 Patterson v R [2008] NZCA 75 at [41]; Burke v Police HC Tauranga CRI-2006-470-32,16 November 2006; and O'Hanlon v Police HC New Plymouth CRI-2009-443-26, 18 December2009.36 R v M [2008] NZCA 112; R v Johnson [2010] NZCA 168; and Rafiq v R [2017] NZCA 220.such as by fraud or property damage.37 Overall, it is clear that a highly fact specificapproach is necessary.[53] Ms Watene has voluntarily paid a significant proportion of her retirementsavings to the victim. She was not required to. This was not only an offer of amendsbut concrete steps by her to do so.[54] While the total reparation that Ms Watene is able to pay represents a fractionof the loss that she has caused to the victim, I consider that the focus in fixing theappropriate sentence must be on the means of the person making amends and the effectthat those payments will have on them. Ms Watene is 58 years old and nearingretirement with little to no savings and a relatively low income. She has severelydepleted her modest retirement savings in order to make a lump sum payment to thevictim, and has made regular payments in addition since her sentencing last August.Further, Ms Watene has committed to continue making weekly payments to the victimof $100 for the remainder of her working life. Given her age and financial position,this will have a significant impact on her own financial wellbeing and the quality ofher retirement. In my view her conduct demonstrates a very high level of remorse, andthe impact of the reparation order must be fully and fairly reflected in the appropriatereduction to the starting point. In addition, in a memorandum of 21 November 2022,Crown counsel relayed the victim's views, which were said to "clearly indicate apreference for reparation to continue to be paidover the appellant serving animprisonment term". I am obliged to have regard to those views.[55] Ms Watene also advised me at the last hearing that she has voluntarily soughtassistance in relation to her use of alcohol, which, as I have noted, has been a commonfactor in her offending. Her steps to seek help and prospects of rehabilitation must alsobe acknowledged in the sentence I impose.[56] In all the circumstances, I consider that a combined discount of 30 per cent iswarranted for the significant payments made to date and the remorse that Ms Watenehas now demonstrated, her offer to continue paying reparation until retirement, and37 See Thacker, Farrell and Koya, above n 32. See also R v Pian [2020] NZHC 2216 (20 per centdiscount applied where voluntary repayment in full before police or court involvement).her steps to address alcohol use. In making this discount, I acknowledge that it is likelyto be at the upper end of the permissible range, but consider it is necessary to reflectthe significant steps that the appellant has made to try and remedy—as far as she can—the harm she has caused to the victim. I consider that justice is best served by ensuringhe receives amends for that harm rather than imprisoning the appellant for a significantproportion of her remaining working life.[57] The appeal against the sentence of three years and six months' imprisonmentis allowed. In light of Ms Watene's steps to address the financial harm caused by heroffending and remorse I am satisfied that a sentence other than one of imprisonmentis the least restrictive outcome that is appropriate in the circumstances, in accordancewith the hierarchy of sentences set out in s 10A of the Sentencing Act.38[58] On the charge of arson Ms Watene is convicted and sentenced to 12 months'home detention. I defer the start of her sentence until Thursday, 30 March 2023, sothat the necessary arrangements can be put in place.[59] While it is ultimately for the probation service to determine the conditions onwhich that sentence must be served, I record that the reason she has been sentenced tohome detention is to enable the appellant to retain employment and, in turn, continuepaying reparation to the victim. Given the letter of support I have received fromMs Watene's employer, I do not see why that should not be possible. I would ask theprobation officer responsible for her sentence to take steps to ensure the sentence doesnot affect her ability to meet the sentence of reparation.[60] Finally, I make a reparation order in the sum of $30,000. The moneysMs Watene has already paid into Court are in reduction of that sum and should be paidto the victim as soon as possible.38 Sentencing Act, s 8(g).[61] Ms Watene is convicted and discharged on the remaining charges. Her periodof disqualification on the driving charge remains unaltered. She is to attend on theprobation service as directed.Isac JSolicitors:Crown Solicitor, New Plymouth for Respondent