WADDINGTON v R [2019] NZCA 440

WADDINGTON v R [2019] NZCA 440 [19 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA788/2018[2019] NZCA 440BETWEEN TONI NATASHA WADDINGTONAppellantAND THE QUEENRespondentHearing: 19 August 2019Court: Brown, Simon France and Dunningham JJCounsel: R B Keam for AppellantG R Kayes and L J Sullivan for RespondentJudgment: 19 September 2019 at 10.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a trial by jury in the District Court at Kaikohe Ms Waddington wasfound guilty on two charges of aggravated robbery. On 28 November 2018 she wassentenced to seven and a half years' imprisonment on each charge to be servedconcurrently.1 Ms Waddington appeals against her sentence contending it ismanifestly excessive because:(a) the nine year starting point was excessive having regard to the natureof her involvement in the offending and the nine year starting pointsadopted for her co-offenders; and(b) she was given insufficient discount for mitigating factors, namely herremorse and lack of previous convictions for violence.Factual background[2] On the night of 19 January 2017 Ms Waddington and her two co-offenders,Mr Walker and Mr Wiki, went to an address in Mangonui with the object of obtainingmethamphetamine. They knew the victims, Ms Lourie and Mr McMath, havingobtained methamphetamine from them in the past.[3] While sitting in the car outside the victims' house prior to the robbery, Mr Wikiattempted to discourage Ms Waddington from entering the house but she insisted,apparently influenced by a grudge against Ms Lourie and a desire to extort propertyfrom the victims.[4] On entering the house Mr Walker and Mr Wiki threatened Mr McMath with aloaded firearm. Ms Waddington directed her attention to Ms Lourie, hitting hera number of times with a pair of fencing pliers. Ms Lourie suffered lasting injuries asa result of the attack which in part was directed at her head.[5] The incident ended when, alerted by the noise coming from the victims'property, neighbours appeared whereupon the three offenders left the scene inthe vehicle in which they had arrived. As they departed Mr Walker fired two shotsinto the ground.1 R v Waddington [2018] NZDC 24747. On the morning of trial Ms Waddington pleaded guilty toone charge of possession of utensils for the use of drugs in respect of which she was convictedand discharged.The judgment under appeal[6] After reciting the facts and noting that Ms Waddington had insisted on goinginto the house despite Mr Wiki's discouragement, Judge Orchard concluded thatMs Waddington was very much "part and parcel" of what happened and an "activeparticipant".2 Concerning Ms Waddington's motivation the Judge stated:[10] I note that as far as your attack on the complainant, Ms [Lourie], wasconcerned, it was motivated, according to the evidence which I accept, first atextracting property from her or the whereabouts of property from her, soessentially robbery which of course is consistent, the only view which isconsistent with the verdict, and [possible], and also of course not just to extractproperty from her, but also to prevent her interfering with what was happeningto her partner, and finally it seems that you held some grudge against herwhich again might have added to your lack of compunction involving yourselfin this very serious offending.[7] The Judge saw no justification for regarding Ms Waddington's involvement asless serious than her co-offenders, being mindful of the need for parity and noting thatshe was the oldest of the trio by a considerable degree.3[8] The Judge noted as aggravating features the high level of actual violence,the threatened violence which included the use of two weapons, one of which wasa loaded firearm, and premeditation.4 The Judge considered that what was effectivelya home invasion at night was a serious aggravating factor which had the consequencethat both victims no longer feel safe in their home.5 While noting that a higher startingpoint would have been justified the Judge took the same nine year starting point as hadapplied to the co-offenders.6[9] The Judge then noted that Ms Waddington had been on EM bail for over18 months during which time she had taken steps to address her drug offending andhad completed a number of courses.7 The Judge allowed a discount of six months forthe time spent on EM bail and a further year for Ms Waddington's rehabilitation efforts2 At [9].3 At [12]. At the time of offending Ms Waddington was 36 whereas Messrs Walker and Wiki were20 and 21 respectively.4 At [17] and [19].5 At [18].6 At [23].7 At [28]–[30].which she considered very generous.8 However, having regard to the content ofthe pre-sentence report, the Judge declined to allow any discount for remorse.9Appellant's submissions[10] With reference to starting point, Mr Keam advanced what he described asa policy-based argument which focused on the implications of the use of a firearm.He submitted that firearms are inherently dangerous in that homicide may occur bythe touch of a finger. Hence a sterner penalty should be imposed on those whoseoffending involves firearm use. Not only did Ms Waddington not have possession ofthe firearm but it was submitted that on the evidence it would have been open tothe Judge to infer that she was unarmed when she entered the property. Mr Keam alsoemphasised that in determining the level of relative culpability the Judge appeared tohave placed weight on the fact that the appellant was older than her co-offenders.[11] On the question of discount Mr Keam submitted that the Judge erred indrawing unfavourable inferences about remorse merely from the fact thatMs Waddington had taken the charges to trial. He submitted that following trialMs Waddington made genuine efforts by a letter and through social media to apologiseto Ms Lourie with whom she had had a previous friendship. It was contended thata six month discount for remorse would have been appropriate.Respondent's submissions[12] Mr Kayes advanced seven reasons why Ms Waddington was properly viewedas equally culpable with her co-offenders:• she was motivated in part by a grudge against Ms Lourie;• she knew of the plan to rob the victims;• she knew of the intended use of the gun in the robbery;• she wanted to be involved and she was not dissuaded by Mr Wiki;8 At [32].9 At [25].• she was directly involved, inflicting injury with a weapon, the fencingpliers;• her attack on Ms Lourie continued after the robbery was completed; and• she was directly involved in taking property.These factors justified the Judge's conclusion that Ms Waddington was an activeparticipant and "part and parcel" of what occurred.[13] Mr Kayes then reviewed the evidence concerning the source of the fencingpliers which Ms Waddington had used in the tussle with Ms Lourie. He submitted thatnotwithstanding the letters which Ms Waddington had written, the Judge was correctto decline to allow any discount for remorse in view of Ms Waddington's suggestionin the Department of Corrections advice that she had had to defend herself againstMs Lourie who had wielded the pliers and Ms Waddington's failure to recall strikingMs Lourie a number of times.DiscussionPrinciples[14] We must allow the appeal if we are satisfied that there was an error inthe sentence appealed from such that a different sentence should be imposed.10Ultimately, the focus is on the sentence imposed, rather than the process by which itwas reached.11 It is a well recognised principle that it is generally desirable that therebe consistency of sentences between offenders committing the same or similaroffences.12Was the starting point too high?[15] We recognise that the Judge did not make a specific finding on the issue ofwhether the pliers which Ms Waddington used to assault Ms Lourie were brought tothe premises by the offenders. We proceed on the basis that the pliers may already10 Criminal Procedure Act 2011, s 250(2).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Sentencing Act 2002, s 8(e).have been in the house. However the point of significance is that Ms Waddingtondeployed the pliers to inflict serious injury to Ms Lourie in an attempt to extortproperty from her.[16] We also acknowledge Mr Keam's point that Ms Waddington did not havepossession of the firearm. However she had discussed the plan with her co-offendersand we agree with Mr Kayes that she must have been aware that a firearm was beingtaken to the house. We accept his submission that there is no basis for concluding thather culpability was less than that of Mr Wiki and Mr Walker simply because she didnot carry the firearm when she must have anticipated that it would be used.[17] We do not consider that the Judge placed undue weight on the age ofMs Waddington relative to her co-offenders. As Mr Kayes noted, the Judge did notdescribe her as "the ringleader". We accept the proposition that the Judge likelyreferred to the age disparity to contrast this case with others where an impressionableoffender is drawn into a plan made by older co-offenders.[18] We agree that the offending in this case aligns with the following scenariogiven as an example in R v Mako:13Forced entry to premises at night by a number of offenders seeking money,drugs or other property, violence against victims, where weapons arebrandished even if no serious injuries are inflicted would require a startingpoint of seven years or more.[19] We also agree that the gravity of the offending in Hemopo v R which concerneda home invasion is broadly comparable to the present offending.14 This Court heldthat a nine year starting point adopted by the District Court Judge was justified havingregard to the degree of violence used, the considerable impact upon the victims andassociated offending including detention while the house was ransacked.15[20] Consequently we conclude that the nine year starting point adopted bythe Judge was appropriate, quite apart from the issue of parity with the co-offenders'sentences.13 R v Mako [2000] 2 NZLR 170 (CA) at [58].14 Hemopo v R [2016] NZCA 242.15 At [12]–[18].Should a discount for remorse have been allowed?[21] The respondent accepted that the Supreme Court in Hessell v R16 made it clearthat remorse and guilty pleas are separate mitigating factors which may justify separatediscounts. Whether it will be appropriate to draw an inference of lack of remorsewhere a defendant pleads not guilty will depend on all the relevant circumstances.[22] While in the present case the Judge noted the fact of the not guilty plea weconsider that the particular considerations that influenced the Judge in deciding not toallow a discount for remorse were those to which the Judge earlier referred:[25] Your counsel has suggested that I take, that I allow, allow you somediscount for genuine remorse. Ms Waddington, I can't do that and that isbecause I have read that penultimate paragraph on page 1 of your pre-sentencereport in which essentially you do not take full responsibility for things thatyou should, for this offending and you should. You even, for instance, ask thatyour own injury be taken into account and suggest that it was the complainantwho attacked you, rather than the other way around.[26] There are two things about that last point, first is I don't accept it, butsecond, it completely ignores the fact that you'd invaded her home. If she hadtaken it into her head to attack you, it would've been an act of self-defenceand she was entitled, would have been entirely justified in doing it, so even ifshe had, which I don't accept, it wouldn't have helped you. That suggests thatyou have not yet taken full responsibility for your actions, even though youhave had plenty of time to think about it.[23] We agree with the Crown submission that the 18-month discount whichthe Judge had already allowed was generous and that in the circumstances of this casethe Judge did not err in declining to provide the further six months for remorse whichMr Keam sought.Result[24] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]. See also R v Cossey [2019] NZCA104 where the defendant was found guilty following trial and a discount for genuine remorse wasgiven at sentencing.