Webber v R

• Jurisdiction: New Zealand
• Judge: Ellis J
• Judgment Date: 27 April 2021
• Neutral Citation: [2021] NZCA 133
• Court: Court of Appeal
• Docket Number: CA564/2020
• Date: 27 April 2021

Between

Matthew Winara Webber

Appellant

and

The Queen

Respondent

[2021] NZCA 133

Court:

French, Ellis and Muir JJ

CA564/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — Appeal by Webber (“W”) against a sentence of life imprisonment with a Minimum Period of Imprisonment of 15 years imposed for the charge of murder — the appellant was a gang member and the “gang enforcer” — the appellant was on his third-strike — discounts for personal mitigating factors — Sentencing Act 2002

Counsel:

K J Gray and K E Bucher for Appellant

C J Boshier and A M Harvey for Respondent

The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellis J)

1 Mr Webber is the second person in New Zealand to be sentenced on a charge of murder as a stage-3 “strike” offence. He pleaded guilty to that charge following a sentence indication. 1 Nation J then sentenced him in accordance with that sentence

indication to life imprisonment, with a minimum period of imprisonment (MPI) of 15 years. 2 Mr Webber now appeals that MPI

Background

Facts

2 Mr Shayne Heappey was an associate of the Christchurch chapter of the Nomads gang. He was 25 years old. He had the misfortune to owe a small debt to Ms Leonie Cook, who is the stepdaughter of Mr Randall Waho, the President of the gang. Apparently, Mr Heappey was also in possession of a stolen vehicle to which Ms Cook felt some kind of entitlement.

3 Ms Cook was unable to resolve matters with Mr Heappey. She escalated it to Mr Waho, thereby making her personal dispute a gang issue. Attempts were made by Mr Waho to arrange a meeting with Mr Heappey to resolve the conflict.

4 For whatever reason, Mr Heappey did not wish to meet with Mr Waho. This perceived disrespect was exacerbated by Mr Heappey later agreeing to meet Mr Waho but then failing to turn up or to respond to messages. At one point, for example, Mr Heappey texted Mr Waho, saying:

I cant do it tonyt no excuse mad Im not all there tonight mad ill come over tomorrow to see u and matty to collect my punishment I have no excuses just not up to it yeha.

5 Eventually, on 8 December 2018, it was arranged that Mr Heappey would be collected by Mr Richard Sim (a patched member of the Nomads) and taken to an address in Oakhurst Place. Once there, texts were sent to Mr Webber, advising that Mr Heappey had been found. Mr Webber is also a patched member of the Nomads, and it was understood that he was the gang's “enforcer”. It was his job to mete out violence to those who broke the rules.

6 Ms Cook and Mr Justin Burke picked up Mr Webber and took him to an Oakhurst Place address, where Mr Heappey was waiting. They went inside the house

and asked Mr Heappey to come outside. On their way out, Mr Webber closed the curtain so the people inside could not see what was happening

7 Mr Webber was armed with a knife. 3 Once outside, he set upon Mr Heappey. He stabbed him fourteen times. Three of the stab wounds were to his chest. Two penetrated his heart, posing an imminent threat to life. Others were less serious, and some were superficial. There were two additional marks in Mr Heappey's clothing that indicated further strikes with the knife that had not reached his body.

8 Mr Heappey tried to flee back into the house. He fell inside with Mr Burke on top, punching him. Mr Heappey managed to get onto the couch, but it was immediately obvious that his life was in jeopardy. Mr Webber came inside and said to Mr Heappey, “that'll teach you a lesson”. He told the others to get Mr Heappey to a hospital.

9 Mr Heappey was then loaded into a car, and Ms Cook drove him to the Christchurch Hospital, where he was attended to by medical staff. He died soon after.

10 A few hours later, Mr Webber sent a text message to Mr Waho, saying that he had sorted that weed in the garden and “sent a message to all our brothers”.

Mr Webber's co-offenders

11 Mr Waho, Ms Cook and Mr Sim all pleaded guilty to (among other things) a charge of being a party to causing grievous bodily harm with intent to injure, which carries a seven-year maximum sentence. 4 They were sentenced as follows:

• (a) Mr Waho: a four-year starting point 5 and an end sentence of two years and 11 months' imprisonment. 6 This had been reduced on appeal from

  three years and three months' imprisonment due to personal mitigating factors set out in a s 27 report. 7

• (b) Ms Cook: a three and a half year starting point and an end sentence of two years and three months' imprisonment (on this charge). 8

• (c) Mr Sim: a three-year starting point and an end sentence of two years and three months' imprisonment. 9

12 Mr Burke was charged with murder as a party, but he was found guilty of manslaughter. A starting point of six and a half years was adopted, 10 with an end sentence of five years and two months' imprisonment. 11

Mr Webber's previous convictions and strike warnings

13 At the time of sentencing, Mr Webber had already been sentenced for four different strike offences and had accumulated two strike warnings. His relevant criminal history was summarised by the Judge in the sentence indication. 12 It is as follows:

• (a) 2008: a male assaults female conviction, for which Mr Webber received a (concurrent) term of one month's imprisonment.

• (b) 2010: a conviction for wounding with intent to injure, for which he was sentenced to 20 months' imprisonment with leave to apply for home detention.

• (c) 2010: convictions for aggravated robbery and assault with intent to rob, for which he received his first strike warning and was sentenced to three years and six months' imprisonment.

• (d) 2015: a conviction for aggravated robbery, for which he received his second strike warning and an end sentence of 21 months' imprisonment.

• (e) 2015: a conviction for assault with intent to injure, for which he was sentenced to nine months' imprisonment.

• (f) 2018: a conviction for assault with intent to injure, for which he was sentenced to 12 months' imprisonment.

• (g) 2020: a charge of assaulting a Corrections officer. 13

Sentencing

14 Mr Webber's sentencing closely followed — and was interwoven with — the Judge's earlier sentence indication. For that reason, it is necessary to consider aspects of both in order fully to set the scene for the issues on appeal.

15 Because Mr Webber was on his third strike and was charged with murder, sentencing was required to proceed in accordance with s 86E of the Sentencing Act 2002 (the Act), which relevantly provides:

86E When murder is a stage-2 or stage-3 offence

…

(2) If this section applies, the court must—

• (a) sentence the offender to imprisonment for life for that murder; and

• (b) order that the offender serve that sentence of imprisonment for life without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so.

…

(4) If the court does not make an order under subsection (2)(b), the court must,—

• (a) if that murder is a stage-3 offence, impose a minimum period of imprisonment of not less than 20 years unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to do so; and

• (b) if that murder is a stage-2 offence, or if the court is satisfied that a minimum period of imprisonment of not less than 20 years under paragraph (a) would be manifestly unjust, order that the offender serve a minimum period of imprisonment in accordance with section 103. 14

16 The Judge considered that it would be manifestly unjust to sentence Mr Webber to life imprisonment without parole or to impose an MPI of 20 years. The principal reasons for his conclusions were:

• (a) Mr Webber's age (31 at the time of sentencing), which would make a sentence of life without parole or life with an MPI of 20 years particularly harsh; 15

• (b) the fact that Mr Webber's prior “strike” offending was not of the most serious kind; 16 and

• (c) the Judge's assessment that, were Mr Webber to be sentenced simply by reference to s 103 of the Act, an MPI of only 15 years' imprisonment would be warranted. 17

17 In making this s 103 assessment, the Judge identified the aggravating factors of Mr Webber's offending as being: 18

• (a) the wider context of gangs and gang violence;

• (b) the use of a lethal weapon;

• (c) Mr Heappey's vulnerability, due to the way in which Mr Webber and Mr Burke attacked him; and

• (d) premeditation.

18 The Judge in his sentence indication compared Mr Webber's offending to that in R v Kahia. 19 That case also had a wider gang backdrop and a stabbing. Put briefly, after learning about an earlier fight between his brother and the victim, Mr Kahia armed himself with a knife and, with his brother, formed a plan to deal to the victim. At some point during the fight that followed, Mr Kahia drew the knife and stabbed the victim three times, one of which proved fatal. At sentencing, an MPI of 13 years was imposed. 20

19 The Judge's reasons for distinguishing Kahia — and adopting an MPI that was two years higher — were expressed as follows: 21

[53] Here, your attack was part of vigilante justice according to gang rules. There was thus a significant gang context to the attack. There had been considered premeditation as to what you would do. The number of wounds inflicted by you demonstrated an intense element of aggression and hostility towards the victim in a situation where he was vulnerable. Despite the position ultimately taken by the Crown, I consider the offending warranted a minimum period (MPI) of 15 years.

20 The Judge allowed a discount of one year for the guilty plea. 22

21 In terms of aggravating factors personal to Mr Webber, the Judge referred to his established record of violent offending and the fact that the earlier strike warnings had apparently made no difference. 23...