Wilson v R [2015] NZCA 235 (11 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA530/2014 [2015] NZCA 235
BETWEEN	CHARLES KAKENGA WILSON Appellant
AND	THE QUEEN Respondent

Hearing:	8 June 2015
Court:	Harrison, Andrews, Gilbert JJ
Counsel:	C D Bean for Appellant K J Cooper for Respondent
Judgment:	11 June 2015 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] Following trial by jury in the Hamilton District Court, Charles Wilson was found guilty of two charges of burglary and 11 charges of receiving stolen property. Judge Burnett convicted and sentenced Mr Wilson to four years and eight months’ imprisonment and ordered him to serve a minimum of half of this term.^[1] The Judge arrived at this sentence by adopting a starting point of four years and six months’ imprisonment, applying an uplift of nine months for personal aggravating factors and a reduction of six months for time spent on electronically monitored bail.^[2] The Judge also ordered Mr Wilson to pay reparation in the sum of $7,851.12.
[2] Mr Wilson does not challenge the base starting point adopted by the Judge but appeals against his sentence on the following grounds:

• (a) The uplift was too high.
• (b) Remorse should have been taken into account as a mitigating factor.
• (c) A minimum period of imprisonment should not have been imposed.
• (d) The order for reparation should not have been made.

Was the uplift too high?

[3] At the time of sentencing, Mr Wilson had 55 prior convictions, 34 of which were for offences involving dishonesty and eight for non compliance with Court orders. Mr Bean acknowledges that an uplift was appropriate to take account of Mr Wilson’s prior convictions. He submits that the uplift should have been no higher than six months’ imprisonment for this.
[4] Mr Bean’s submission that the uplift should have been restricted to six months overlooks that this was not the only aggravating factor that the Judge took into account. The Judge also took into account, as she was required to do, that Mr Wilson’s current offending commenced just two days after he was released from a sentence of home detention for an earlier burglary and while he was still subject to post release conditions.^[3]
[5] The overall uplift of nine months’ imprisonment to take account of these two aggravating factors was plainly within the range of the Judge’s sentencing discretion and there is no basis upon which we could interfere with it.

Should an allowance have been made for remorse?

[6] Counsel did not suggest at the time of sentencing that remorse was a factor that should be taken into account in the sentencing exercise. Mr Bean nevertheless submits that the Judge was wrong not to allow a discount for remorse. He relies on comments in the pre-sentence report that Mr Wilson “showed considerable remorse for his victims” and “was willing to make amends”.
[7] The Judge did not accept that Mr Wilson was genuinely remorseful and we are not persuaded that she made any error in making this assessment. Mr Wilson did not plead guilty and has made no attempt to compensate his victims. Even now, he challenges the Judge’s order for reparation.
[8] The Judge also had reservations about relying on the positive comments in the pre-sentence report. This was because Mr Wilson was able to procure a similarly positive report following his completion, on 24 July 2012, of a sentence of home detention for an earlier burglary. The coordinator of the 16 week rehabilitation programme that Mr Wilson attended during the course of serving that sentence made various favourable comments about Mr Wilson including that he had achieved all that was required of him and had been a role model for newer residents. Notwithstanding the support Mr Wilson received while carrying out this sentence, he engaged in the present offending immediately after he completed it. In our view, the Judge was entitled to be sceptical about the comments in the pre-sentence report for the reasons she summarised as follows:^[4]

So you do have this ability to be able to persuade people who are tasked with assessing your current and future prospects to be able to present to them one side of you, whilst cynically doing something very different.

[9] Mr Bean submits that Mr Wilson ought to have been given credit for his good conduct between the time of his arrest in September 2012 and the date of sentencing in May 2014. The difficulty with this submission is that Mr Wilson was convicted of common assault and breaching a liquor ban arising out of an incident on 9 June 2013, while he was on bail for the present offending. This is what led to the imposition of electronically monitored bail.
[10] In summary, we are not persuaded that the Judge made any error in not making any allowance for remorse.

Was it appropriate to impose a minimum period of imprisonment?

[11] Mr Wilson operated a significant commercial enterprise trading in stolen goods. He created a market for goods stolen by others and carried out two burglaries at residential properties himself. In the three month period covered by the charges, he obtained stolen property with an estimated retail value of some $43,000. The Judge was entitled to consider the need to hold Mr Wilson accountable for the harm he caused to his victims and the community and the need to denounce his conduct and deter him and others from offending in a similar manner. Mr Wilson has a significant history stretching back to March 1999 of committing offences involving dishonesty including burglary and theft. He was subject to post release conditions for the same type of offending when the present offending occurred. The Judge was therefore entitled to consider the need to protect the community from him.
[12] All four factors identified in s 86(2) of the Sentencing Act 2002 were engaged in this case. We consider that the Judge was justified in making an order under that section requiring Mr Wilson to serve a minimum period of imprisonment of 50 per cent of the sentence she imposed.

Was the order for reparation appropriate?

[13] Prior to the sentencing hearing, the Crown signalled that an order for reparation would be sought and provided a detailed calculation of the amount. No issue regarding reparation was taken at the sentencing hearing. Despite this, Mr Bean argues that the Judge was wrong to make any order for reparation and, in any event, there is an error in the calculation.
[14] Section 12 of the Act provides that reparation must be ordered unless the Court is satisfied that the order would result in undue hardship for the offender or the dependants of the offender or that any other special circumstances would make such an order inappropriate. Mr Wilson was employed at the time of sentencing and is a qualified plasterer. He had also gained from his offending. There was no evidence to indicate that the presumption in favour of reparation was displaced for any of the reasons stated in s 12 and we are not persuaded that the Judge made any error in ordering it, particularly given that the order was not opposed.
[15] Mr Bean submits that the amount ordered in respect of one of Mr Wilson’s victims was overstated by $1,000. This represented compensation for the loss of hundreds of CDs that this victim, a disc jockey, had accumulated over a six year period. Given that no issue was taken with the calculation at the time, we are unable to see how the Judge could be criticised for accepting it. In our view, it would have been quite wrong not to have ordered reparation for the loss of this CD collection which caused serious inconvenience to the victim.

Result

[16] For the reasons given, none of the grounds of appeal is made out. The appeal must accordingly be dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Wilson DC Hamilton CRI-2012-019-6295, 5 September 2014.

^[2] On this basis the end sentence should have been four years and nine months’ imprisonment. Mr Wilson has received a small benefit from this mathematical error.

^[3] At [21].
^[4] At [11].