Waho v R [2020] NZCA 526 (27 October 2020)

Last Updated: 3 November 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA155/2020 [2020] NZCA 526

	BETWEEN	RANDALL CLINTON WAHO Appellant
	AND	THE QUEEN Respondent

Hearing:	20 July 2020
Court:	Cooper, Peters and Whata JJ
Counsel:	J D Lucas for Appellant C J Boshier for Respondent
Judgment:	27 October 2020 at 2.15 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is allowed.

100. The sentence imposed in the High Court of three years and three months’ imprisonment is set aside.

4. 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 and three months’ imprisonment imposed after he pleaded guilty to a charge of causing grievous bodily harm with intent to injure.^[1] He argues that Mander J adopted a starting point that was too high having regard to the circumstances of the case and also the starting points adopted in respect of sentences imposed on co‑offenders. He also contends that the Judge erred by failing to give proper consideration to personal mitigating circumstances, including:

(a) his participation in a restorative justice process; and

(b) matters raised in a report provided under s 27 of the Sentencing Act 2002, said to mitigate his culpability for the offence.

• [2] It is also claimed that the discount of 20 per cent the Judge allowed in respect of the guilty plea was insufficient.
• [3] Mr Waho’s appeal was filed 12 working days out of time. The delay is minor and has not caused any prejudice to the Crown. We grant the required extension of time accordingly.

Relevant facts

• [4] Mr Waho was sentenced on the basis of a summary of facts which recorded that he and four others were members or associates of the Nomads gang. The summary stated 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 accepted through counsel that Mr Waho held a position entitling him to “some respect and deference from other gang members” and that he was “in a position of influence”.^[2] The Judge noted that Mr Waho’s leadership position in the gang meant that he was able 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 of the Nomads gang Christchurch chapter who was known to Mr Waho and the other defendants. In the days prior to Mr Heappey’s death, members of the gang were actively involved in trying to find him in relation to a debt he owed to Ms Leonie Cook who was the daughter of Mr Waho’s partner. Mr Heappey was said to have ignored repeated requests to meet in order to settle the debt. He indicated in a message sent to Mr 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 and discuss the debt. After noting that Mr Waho considered Mr Heapey was disrespecting him, the Judge continued:

[10] Finally, after efforts by you, your stepdaughter and your mutual associates, arrangements were made to collect Mr Heappey and take him back to an address. After you were informed that he had been located, arrangements were made for another gang member and co-defendant, who was known to be an enforcer within the gang, to attend at this address where Mr Heappey had been taken. At that location a physical confrontation took place between him and two men which resulted in him being stabbed some 14 times. He died from his wounds. Those two men have been charged with his murder.

[11] You together with your stepdaughter and another man were charged with causing grievous bodily harm with intent to injure. The Crown considers that charge adequately reflects your involvement in the plan to give Mr Heappey his “punishment”, on the basis that you only ever intended for Mr Heappey to receive a physical beating.

• [6] The two men involved in the stabbing were charged with murder.^[3] Two other associates of Mr Waho, namely Ms Cook and another gang member, Mr Sim, at whose address the confrontation occurred, also pleaded guilty to the charge of causing grievous bodily harm with intent to injure. Mr Sim was sentenced by Dunningham J on 18 September 2019 to two years and three months’ imprisonment.^[4] The starting point adopted was three years’ imprisonment.^[5] Ms Cook was sentenced by Dunningham J on 6 November 2019 to four years and three months’ imprisonment.^[6] That sentence comprised two years and three months’ imprisonment for the charge of grievous bodily harm with intent to injure, and a cumulative sentence of two years’ imprisonment for drug offending. The starting point for the grievous bodily harm charge was three years and six months’ imprisonment.^[7]
• [7] It is also relevant to note that on 20 August 2019 Mr Waho sought a discharge without conviction under s 147 of the Criminal Procedure Act 2011, on the basis that there was insufficient evidence on which a properly directed jury could convict him of the charge. The application was dismissed by Jagose J in an oral judgment delivered on that day.^[8]
• [8] Following that, Mr Waho sought a sentence indication. The indication was given by Mander J on 4 November 2019. The Judge indicated a sentence of not more than three years and seven months’ imprisonment.^[9]

The sentence

• [9] The Judge identified four aggravating features of the offending.^[10] First, while he accepted that Mr Waho had not intended Mr Heappey to die and may not have foreseen the level of violence which took place, he had participated in the chain of events 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 the violent plan that Mr Waho had participated in setting in motion. Secondly, there was clear pre‑meditation involved in the offending. Mr Waho was actively involved in arranging for Mr Heappey to be physically punished. He had sent the victim’s phone number to the other members of the gang and gave instructions to another associate when the victim was tracked down. Thirdly, the Judge noted the feature of “gang involvement”.^[11] He found the offending had involved “organised criminal retribution”, which he considered to be an aggravating factor.^[12] Finally, the Judge noted the group nature of the attack. He recorded that Mr Waho knew that Mr 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 and associates combining to mete out violence. There is the hallmark of organised criminal offending and, I accept, an element of vigilante justice that you were involved in coordinating. While it was not your intention, the fact remains that Mr Heappey lost his life as a consequence. The relative triviality of the grievance that involved you and others only underlines, as I said to you on the previous occasion, the senselessness of the violence and the senselessness of Mr Heappey’s death.^[[13]]

• [11] The Judge noted there was no dispute the offending fell within band 3 of the bands identified in this Court’s guideline judgment, Nuku v R.^[14] He considered that the appropriate starting point was one of four years’ imprisonment.^[15] That would appropriately recognise Mr Waho’s status within the gang hierarchy, his role in the events that ultimately led to the attack on Mr Heappey, and the level of influence that he had been able to exercise, at least initially, over the participants. The Judge recorded his acceptance of the Crown’s submission that Mr Waho had effectively coordinated the assault.^[16] This had included allocating the task of administering Mr Heappey’s “punishment” to a fellow gang member, and sending Ms Cook to collect that person and take him to the location to which Mr Heappey had been brought under false pretences, also at Mr Waho’s direction.
• [12] The Judge referred to Mr Waho’s significant criminal history, including 90 previous convictions many of which were for violence, some of which were very serious.^[17] He considered an uplift of six months’ imprisonment appropriate to reflect this. That brought the sentence to four years and six months’ imprisonment, before the consideration of potentially mitigating circumstances.
• [13] The Judge recorded that Mr Waho, then 46 years of age, had been associated with or a member of a gang since his teenage years. The Judge noted that after Mr Waho’s parents died, he was placed in foster care before beginning to live on the streets 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 in the painting and plastering trade, but Mr Waho was unemployed at the time of the offending.
• [14] The Judge said that he had taken into account a report provided under s 27 of the Sentencing Act and noted that Mr Waho had engaged in a restorative justice conference with Mr Heappey’s brother. The Judge acknowledged that had resulted in a “positive outcome” and a degree of reconciliation.^[19] He also acknowledged the restorative justice process had included expressions of sorrow for Mr Heappey’s death directly to his brother.^[20] He accepted that the s 27 report showed Mr Waho had demonstrated greater insight into the offending than had previously been apparent.
• [15] The Judge allowed a deduction of five months from the starting point, which he considered would properly take into account all matters of personal mitigation including the matters referred to in the cultural report that emphasised Mr Waho’s deprived background when young and the “lack of whānau support” which had alienated Mr Waho “from the type of cultural support that perhaps would have avoided the 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 some 11 months after Mr Waho’s arrest. In this respect, the Judge maintained that the 20 per cent reduction he had applied at the sentence indication was the most that could be allowed.^[22]
• [17] In the result, the final sentence was three years and three months’ imprisonment.^[23]

The appeal

The starting point

• [18] Mr Lucas submits that the starting point of four years’ imprisonment was too high, having regard to the culpability of Mr Waho’s co-offenders. He argues that Mr Waho’s involvement before the night of the attack had been limited to providing information to the co‑offenders in the form of a cell phone number and “an incentive to 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 took place and contrasts his role with that of Ms Cook who had been actively involved in tracking down the victim on the night he was attacked. She had also arranged for the two people who had actually committed the murder to be driven to the relevant address on the night. Ms Cook had been sentenced on the basis of a starting point of three and a half years’ imprisonment and Mr Lucas submits that Mr Waho’s culpability should not have been regarded as more serious.
• [20] The Judge however specifically referred to the comparative culpability of Mr Waho and Ms Cook in giving his sentence indication. In that decision, the Judge noted that the starting point of four years’ imprisonment was six months higher than the 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 the gang hierarchy, your role in the events that ultimately led to the attack on Mr Heappey, and the level of influence that you were able to exercise, at least initially, over the other participants.

• [21] The Judge was entitled to adopt that approach and we do not consider it resulted in a sentence which was disproportionate compared with the sentence imposed on Ms Cook.

Personal mitigating circumstances

• [22] The second main limb of the appeal is based on personal mitigating circumstances. Mr Lucas submits the Judge had wrongly conflated and combined issues concerning Mr Waho’s background personal circumstances, and remorse. The consequence was that the appropriate discounts for both mitigating personal factors were attenuated.
• [23] The Judge’s allowance of five months for mitigating personal circumstances represented a discount of a little over 10 per cent of the starting point. It was intended to cover both remorse and participation in the restorative justice conference as well as the account given of Mr Waho’s deprived background in the s 27 report. We have concluded 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 the last 10 years. Her report recorded that Mr Waho was the youngest of his parents’ 10 children 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 from age 12 to 15. At the age of 15, Mr Waho went to live with his uncle, who was the founder 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 that he had witnessed vicious gang beatings. He became a patched member of the gang at the age of 16. All five of his brothers were also patched members of the gang and it seemed he had no choice but to join them. He had his first child when he was 16 and another 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 of course 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 current offending. He also reported having been a user of methamphetamine on and off for a number of years.
• [26] Ms Lei analysed Mr Waho’s circumstances in the context of the Māori model of 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 concluded that Mr Waho’s life had been filled with negative influences. She expressed the view that Mr Waho’s whānau background had adversely affected his ability to cope and resulted in poor decision making throughout his life: he had been deprived of a support system and this had created “instability across each of the four dimensions”. She added 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 substance abuse, lack of education and vocational skills and cultural disconnectedness have compounded to trigger detrimental coping strategies leading him to poor decision-making throughout most of his life including the commissioning of the current offices.

• [28] In Carr v R, this Court addressed the position of Māori offenders whose upbringing was affected by poverty, violence, racism, dislocation and gang involvement.^[27] Reference was made to this Court’s guideline judgment in the field of methamphetamine offending in Zhang v R holding that the principles it discussed were not limited to serious drug offences.^[28] This Court also summarised the effect of the High Court judgments in Solicitor-General v Heta and R v Rakuraku.^[29] We do not repeat the summary here. It is sufficient to say it was recognised in Carr v R that where a s 27 report gives a credible account of matters which may be considered to have diminished moral culpability and impaired choice so as to establish a causative contribution to offending, that should have an effect on the sentencing outcome.^[30] We consider there is such a causative contribution here.
• [29] While the gravity of offending may temper the extent of any allowances made for such considerations, issues such as those discussed in the s 27 report in this case must have a discernible impact on the sentencing outcome. The Court in Carr v R emphasised the need to apply ss 7(1)(h) and 8(i) of the Sentencing Act as well as those provisions of the Act requiring sentencing judges to hold offenders accountable, promote in them a sense of responsibility and denounce criminal conduct.^[31] Section 7(1)(h) states one of the purposes of sentencing is to assist in the offender’s rehabilitation and reintegration, and s 8(i) states the court “must take into account the offender’s personal, family, whānau, community, and cultural background in imposing a sentence ... with a partly or wholly rehabilitative purpose” (emphasis added).
• [30] Ms Boshier submits there was significance in the fact that Mr Waho had not been 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 had secured employment as a painter and described himself as a “family man and living the family life”. Ms Boshier noted that despite these considerations, Mr Waho was not dissuaded from resuming an active role in the gang. She referred to statements also made to Ms Lei that he became “bored of family life” and admitting he had resumed an active role in the gang. That brought with it a deterioration in his relationship, and there were episodes of domestic violence resulting in protection orders being put in place. The inference Ms Boshier essentially invited us to take was that having demonstrated that he could live a life free of crime and violence for a period, Mr Waho deliberately chose to resume his old lifestyle and this ultimately resulted 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 of trouble, 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 sentencing that is not the only relevant consideration. The question why he chose to reoffend must also be addressed. We consider there is a substantial explanation for that in the matters set out at length in the s 27 report. Recognising that is what the court is required to do under s 8(i) of the Sentencing Act.
• [32] In all the circumstances, we are satisfied that the five months the Judge allowed for personal mitigating circumstances was insufficient.
• [33] We would allow a deduction of five per cent for remorse and participation in the restorative justice process, and a 15 per cent deduction for the matters addressed in the s 27 report and discussed above. The seriousness of the offending and its consequences 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 reduce the sentence from three years and three months’ imprisonment to two years and 11 months’ imprisonment if the 20 per cent discount for the guilty plea were left in place.^[32]

Discount for guilty plea

• [34] Mr Lucas argued that the Judge should have given Mr Waho a full credit of 25 per cent for his guilty plea.^[33]
• [35] The Judge addressed this issue briefly in his sentencing remarks.^[34] He recorded Mr Lucas’ submission that a full 25 per cent discount should be allowed but said that he did not consider that the plea was entered at the first reasonable available 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 J allowed a discount of 25 per cent for Mr Sim and Ms Cook when she sentenced them in, respectively, September and November 2019. Mr Lucas acknowledges that Mr Waho, unlike the two co-defendants, had made an application for the charge against him to be dismissed under s 147 of the Criminal Procedure Act, the application dismissed by Jagose J.^[35] But he contends that it made little difference to the timing of the pleas in terms of the stage of the proceedings.
• [37] The result of Mander J’s approach is that Mr Waho has been treated slightly less 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 justify the difference, but nor did the Judge rely on that. However, the difference is not such as would cause this Court to disturb Mander J’s approach for disparity reasons.^[36] The Judge was obviously aware of the discount that had been given to the co‑defendants. He simply took the view that a 25 per cent discount should not be given because the plea had not been made at the first reasonable opportunity. That was a view he was entitled to take. His reasoning discloses no error and the disparity between the guilty plea discount afforded to Mr Waho and to his co-offenders is not so 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

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^[1] Crimes Act 1961, ss 188(2) and 66.

^[2] R v Waho [2020] NZHC 112 [High Court sentencing judgment] at [7].

^[3] Mr Webber pleaded guilty and was sentenced to life imprisonment with a minimum period of imprisonment of 15 years: see R v Webber [2020] NZHC 2328. His co-defendant is yet to stand trial.

^[4] R v Sim [2019] NZHC 2361.

^[5] At [13].

^[6] R v Cook [2019] NZHC 2890.

^[7] At [17].

^[8] 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.

^[13] The reference to the previous occasion was to the sentencing indication given on 4 November 2019, 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].

^[19] At [21].

^[20] At [23].

^[21] At [23].

^[22] At [24].

^[23] At [25].

^[24] The summary of facts did not detail what the “incentive” was.

^[25] High Court sentence indication, above n 2, at [10].

^[26] M H Durie “A Māori Perspective of Health” (1985) 20 Soc Sci Med 483.

^[27] 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; and R v Rakuraku [2014] NZHC 3270.

^[30] At [65].

^[31] At [66].

^[32] Calculating the 20 per cent discount for the guilty plea in accordance with this Court’s judgment in 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 held that 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].