WILCOX v R [2005] NZCA 65 (27 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/05

THE QUEEN



v



CHRISTOPHER WILCOX

Hearing: 21 April 2005

Court: Hammond, Robertson and Potter JJ

Counsel: A N D Garrett and D I Brown for Appellant
M F Laracy for Crown

Judgment: 27 April 2005

JUDGMENT OF THE COURT

Appeal against sentence is allowed. Sentence and order made in the High Court are quashed. Mr Wilcox is sentenced to 6 years’ imprisonment with a non-parole period of three years.

REASONS

(Given by Robertson J)

Introduction

[1]	This is an appeal against an effective sentence of seven years’ imprisonment imposed in the District Court at Greymouth on 16 November 2004.
[2]	Mr Wilcox was sentenced to the seven years’ imprisonment with a minimum non-parole period of three years and six months on a charge of wounding with intent to cause grievous bodily harm. There was also a reparation order for $1,000.
[3]	On charges of being armed with a weapon with intent to commit burglary and threatening to kill, he was sentenced to concurrent terms of imprisonment of three years.
[4]	He appeals against both the seven year term of imprisonment and the minimum non-parole period.
[5]	The appellant was initially charged with more serious offences, but prior to the commencement of the preliminary hearing, these were withdrawn and he immediately entered pleas of guilty. The sentencing Judge concluded that this was at the first reasonably available opportunity.

The factual situation

[6]	At about 3pm on 4 July 2004 the appellant went to an address in Hall Street, Hokitika. There was some suggestion that he had also been there earlier in the day. That allegation was denied. Without an admission or proper proof it could not be taken into account.
[7]	There was, however, no dispute that when he went at 3pm he took a .303 rifle which, by the time he went on to the property, was loaded. He entered the house through the back door and immediately came across the complainant who retreated out of the hallway into the lounge. The appellant discharged the rifle down the hall and a bullet went through a window of the front door, and continued across the road and out to sea.
[8]	There was an issue as to whether there was an attempt to reload. Mr Wilcox’s contention was that he was endeavouring to demonstrate that the firearm was unloaded. Whatever the position, the complainant not unnaturally feared for her safety and attempted to protect herself by grabbing hold of the rifle.
[9]	An altercation followed during which there were heated accusations about a rumour campaign which the appellant alleged the complainant had been orchestrating for many months about sexual misconduct on his part. Eventually the appellant struck the complainant several times over the head with the butt of the rifle, she fell to the floor and attempted to crawl away. While this was happening she was punched by the appellant in the face and knocked unconscious.
[10]	Having taken steps to ensure that she was not in imminent danger of dying, the appellant left the address, drove off and dumped the rifle, then went to the Hokitika Police Station where he surrendered himself. Thereafter he was fully co-operative with the police in their investigations.
[11]	The physical, psychological, emotional and financial consequences of the assaults were substantial. The complainant required hospitalisation for a week and surgery for fractures to her cheekbone and other facial bones and the insertion of two plates into her head. The sentencing Judge found that both the physical and psychological scars of the incident would be with the complainant for the rest of her life.

Starting point

[12]	The Judge took the view that this was a case which fell within the third category in R v Hereora [1986] 2 NZLR 164. He concluded that a starting point of imprisonment for 12 years would be justified for the offending. He noted:

It involved unlawful entry into a dwelling house with a loaded .303 rifle. It resulted in serious injuries to the female resident of the address in question. Indeed, it is fortunate the consequences of the incident were not more serious.

[13]	The Crown responsibly noted, in its submissions, that the starting point of 12 years is "difficult to justify". Comparisons are never easy, but we note the decision of this Court in R v Murray CA382/02 6 May 2003 where a starting point of ten years’ imprisonment was adopted on appeal (where the sentencing Judge had taken a starting point of 12 years). It involved both indiscriminate discharging of a .22 semi automatic rifle and a deliberate aiming which hit the victim in the abdomen.
[14]	Similarly in R v Kretzchmann & Carroll CA 113/00, CA116/00 1 June 2000, on a Solicitor-General’s appeal, a starting point for ten years was in this Court where there was an unlawful entry into a private home with serious violence inflicted with a weapon.
[15]	Although what occurred in this case was an inexcusable response whatever concerns the appellant may have had about what he believed the victim was saying about him, which had the potential for fatal consequences, we are persuaded that a starting point of more than ten years cannot be justified in light of the authorities.

Mitigating factors

[16]	The Judge took the view that it was a case where, because of mitigating circumstances, there should be "a generous allowance" in respect of the guilty pleas. He allowed a reduction of one-third from his starting point. The Crown submitted that this was "generous". We are not satisfied that is the proper classification in all the circumstances nor a reason to interfere with what was done. Immediately after the incident, Mr Wilcox first ascertained that the victim’s life was not in danger and, although he disposed of the firearm, he quickly took himself to the Police Station, was thoroughly co-operative and once appropriate charges were laid immediately entered a plea of guilty. There is consistent authority that a reduction of one third in a sentence is available in such circumstances. In the context of our starting point, an allowance of three years would be appropriate.
[17]	The Judge made a separate and discrete allowance of one year in respect of the appellant’s willingness to make reparation and because of the clear conclusion which he reached that the appellant’s guilty pleas were more than an acknowledgement of the inevitable but indeed a true expression of his remorse.
[18]	Although the Crown submitted that we must be careful to look at the total final sentence, an appeal Court should not lightly interfere with the exercise of a sentencing discretion.
[19]	While we have concluded that, although there was an error with regard to the proper starting point, there is no basis shown as to why the rest of the analysis should not be interfered with so as to render the Judge’s sentencing discretion nugatory.
[20]	We therefore conclude that a proper sentence is one of six years’ imprisonment.

Minimum non-parole period

[21]	The second issue is that of the minimum non-parole period.
[22]	At sentencing, counsel for the appellant acknowledged that he was unable to argue against the imposition of a non-parole term. He disputed the non-parole period of two-thirds sought by the Crown and which the Judge rejected noting that an assessment had to be on an individualised basis.
[23]	The Judge concluded that as there were no previous convictions for offending involving violence and the clear prognosis that the appellant would be able to rehabilitate himself, the minimum non-parole term should not be such "as to crush any hope" on his part.
[24]	The Judge noted the four factors which he was required to consider under s 86 of the Sentencing Act 2002 in determining both whether to impose a minimum non-parole term and the duration of it. Having identified these, he said that the term should be one-half. There was no articulation as to why that conclusion was reached.
[25]	Before us, Mr Garrett (who was not counsel in the High Court) submitted that the appellant’s case did not fall within any of the categories of s 86. He noted that the appellant intended, upon being paroled, to pursue a number of avenues with the intention of successful reintegration into society and to prevent further offending. These include:

• attending alcohol and drug counselling;
• reconnecting with his sponsor at Alcoholics Anonymous;
• possibly completing a second Anger Management course or a Stopping Violence programme;
• attending a Mining Skills course with a view to increasing his skills and obtaining mining work in the Grey District.

[26]	It was also noted that the appellant had contacted Restorative Justice Services with the intention of seeking a conference with the victim.
[27]	The Crown, on the other hand, noted the approach of this Court in R v Hanna CA201/04 7 October 2004 where it was said:

[20] To identify a case of aggravated robbery as sufficiently serious to come near the top of the 7-10 year range in R v Mako but then to find that the case was not sufficiently serious to justify a minimum period of imprisonment is prima facie a wrong exercise of the discretion under s 86(2). Whilst the imposition of a minimum period of imprisonment is not to be automatically applied, even in the most serious category of case, the more serious the offending the greater the likelihood that the "sufficient serious criterion will be met indicating the need for the exercise of the statutory discretion in favour of a minimum non-parole period."
[21] Significant aggravating factors will accordingly attract both a lengthy term of imprisonment as well as the imposition of a minimum period of imprisonment, its length turning on their extent. The imposition of the minimum term in these circumstances is the exercise of the judicial discretion having regard to the legislative intend of s 86 of the Sentencing Act.

[28]	The Crown contended that the reasoning applied in this case and because of the serious aggravating features it would be anomalous to find that the sufficiently serious criteria had not been met.

Conclusion

[29]	We are satisfied that, in the total circumstances of this case, whatever may be said about the other issues, the need for denunciation of the indiscriminate use of a firearm in a confrontation in a home on a defenceless woman which continued with a callous attack with the butt and eventually punching her to unconsciousness required the imposition of a minimum non-parole term.
[30]	In these circumstances, we are satisfied that the one half which the sentencing Judge concluded to be appropriate was within a proper sentencing discretion and there is no basis to interfere with it.
[31]	The appeal is accordingly allowed. The sentence and order made in the High Court are quashed. Mr Wilcox is sentenced to six years’ imprisonment with a non-parole period of three years.

Solicitors:
Crown Law Office, Wellington