Police v Wilson DC Palmerston North CRI-2011-054-905 [2011] NZDC 687 (12 May 2011)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2011-054-000905

NEW ZEALAND POLICE

Informant

v

DONALD JUNIOR WILSON

Defendant

Hearing: 12 May 2011

Appearances: Sergeant M E Lyons for the Informant R Bedford for the Defendant

Judgment: 12 May 2011

NOTES OF JUDGE J A BINNS ON SENTENCING

[1] Mr Wilson, you appear for sentence today on three charges, assault on a female which was committed in September 2010, assault using a small blunt object as a weapon which occurred in December 2010, and breach of bail which occurred in January 2011.

[2] You were convicted on the first of the three charges following a defended hearing which I heard in April. At that time you were living as a boarder with the female complainant. It was a dispute about an iPod and there was swearing and yelling. You head butted the victim causing her head to jerk backwards. You flicked your hand under her chin and later whipped an iPod cord across her chest. The incident caused the victim much distress as she had given you a place to live when you had nowhere else. Although you are described as a boarder in the summary, it is

POLICE V WILSON DC PMN CRI-2011-054-000905 [12 May 2011]

clear that you and the victim had previously been in an intimate relationship. The incident included much abuse and swearing and I note that a child was in the home at the time.

[3] In relation to the incident in December 2010 you went to a residential address in Palmerston North. You knocked on the door and you spoke to the tenant. You were looking for the victim in the previous assault matter. The tenant said that he knew that person but she was away from the address. You produced a small blunt object. You ordered the victim inside and made him sit on a chair. He demanded information about the location of the victim in the last assault. The victim was initially unaware that you were Tia’s estranged partner and the mother to her child.

[4] In the next 10 to 20 minutes you repeatedly punched and struck the victim’s head with a blunt object while demanding information from him. You forced the victim upstairs and ransacked a bedroom. You pointed the blunt object at the victim’s torso a number of times during the 15 to 20 minutes that you were with the victim. The victim estimates that he was struck at least a dozen times, either by your fists or the blunt object. When someone knocked at the door you allowed the victim to open it. The police were later notified and subsequently you evaded the police, hiding at friends’ and associates’ addresses. You were finally located on 25 February in Tokoroa. The victim received cuts and bruises to his head.

[5] Having been bailed you breached bail on 26 January. You said that you had got the dates mixed up but this explanation is somewhat inconsistent with the fact that you were evading police at the time in relation to the December incident.

[6] It is apparent that you have problems with aggression and anger, this is apparent from your history of convictions – male assaults female in 2001, contravening a protection order and failing to attend a programme and assault with intent to rob in 2003.

[7] Your lawyer submits that you should be given credit for your guilty plea in relation to the assault using a small blunt object and he advises that you pleaded

guilty to that charge at the status hearing once the charge and the summary of facts were amended.

[8] Mr Bedford submitted that an appropriate sentence on the two assault charges is one year’s imprisonment on each as an end point, and that in stepping back and looking at the totality of the offending the total period of imprisonment should be no more than two years.

[9] When you appeared on Monday he handed to me a number of decisions and I adjourned the matter so that I could consider those. He noted that you are currently sentenced in relation to cannabis matters. He also noted that it is five years since your brother died and that that has caused you much anguish.

[10] I note today that you have produced a letter to me. I have read that and I will refer to that letter later.

[11] In sentencing you, I must have regard to the provisions of the Sentencing Act. The key purposes of sentencing you in relation to these charges are deterrence, denunciation and protection of the community.

[12] I note that in your letter today you expressed remorse. It is difficult to place emphasis on rehabilitative factors in view of your lack of remorse noted by the pre-sentence report writer, and your failure to complete the domestic violence programme. It is also difficult in terms of your continued lack of acceptance of responsibility for offending and the fact that you disputed the factual background to the defended matter, but I note that at the eleventh hour and contrary to the pre-sentence report writer’s view, you do express remorse in the letter that has been handed to me today.

[13] The pre-sentence report notes, that you have minimised your offending. The report writer was concerned that you have continually denied or minimised and justified your actions in relation to the male assaults female charge.

[14] I have regard to the following principles of sentencing; consistency with appropriate sentencing levels and that I must have regard to the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences.

[15] The key rehabilitative needs which were identified for the male assaults female charge were your propensity for violence and relationship difficulties. The report writer noted that these needs can be addressed on your release from prison through your participation in a departmental rehabilitation programme, and the report writer noted that that is something you are already required to do as part of your present sentence. The report writer noted that you have high rehabilitative needs and recommended imprisonment with release conditions.

[16] In relation to the male assaults female charge my findings included that you head butted the victim; you whipped her with the iPod cord and you were verbally abusive. There is no specific tariff for this type of offending but I have considered a number of similar decisions, in particular Kahaki v Police (CRI-2009-463-000033, HC, Tauranga, 16 June 2009, Lang J), R v Werahiko [2008] NZCA 24, R v Reihana (CA 143/03, 3 July 2003). I have considered those decision, and I do not intend to elaborate on them here. I note the decisions your counsel referred me to which had a range from nine months’ imprisonment to two years, six months, but they were primarily in relation to the assault with a weapon charge.

[17] In reviewing similar decisions in terms of the assault on a female I adopt a start point of six months’ imprisonment.

[18] In relation to the assault with a weapon I have reviewed a number of decisions, in particular R v McMillan (CA 317/01, 31 October 2001) and R v White (CA 180/99, 21 July 1999). I accept that the sentencing range for assault with a weapon is wide and taking all matters into account I adopt a start point of 15 months’ imprisonment for that offence. Your criminal record shows two previous convictions for violent offending, one assault with intent to rob and one male assaults female. You have an extensive history of non-compliance with Court orders.

[19] In assessing the starting point in the male assaults female I considered the aggravating features of the offence.

[20] In relation to the December offence there are a number of aggravating factors. Firstly, the offence was committed while you were on bail for the assault on a female charge; the offending involved actual and threatened violence and the actual use of a weapon as well as unlawful presence in a dwelling place. The incident when you entered the dwelling place would have been extremely terrifying for the victim. I consider that you committed the offence because of your hostility towards the victim of the first assault, your obsessive relationship with her and your inability to control your anger. Your previous convictions are relevant, I have referred to those.

[21] I consider that an uplift is appropriate on the assault with a weapon charge, taking into account these aggravating features. The uplift I adopt is five months’ imprisonment. That makes a total of 20 months for that charge. The offending was separate and distinct. On the assault with a weapon charge I deduct 20 percent for your guilty plea. I make no allowance for remorse or other factors.

[22] In considering the totality of the offending I do not consider that the terms of imprisonment should effectively be reduced in any way.

[23] The sentences that I impose are as follows. Firstly, on the charge of assaulting the named person using a small blunt object as a weapon you are convicted and sentenced to imprisonment for 16 months. That sentence is to be cumulative. The sentences of imprisonment which I impose are subject to standard release conditions until six months after your sentence expiry, and special release conditions until six months after your sentence expiry.

[24] In view of the issue Mr Bedford raises, the conditions which I invite the parole board to take into account are firstly, to undertake and complete an appropriate domestic violence prevention counselling programme to the satisfaction of the probation officer and treatment provider. The details of the treatment or counselling are to be determined by the probation officer and the treatment provider.

[25] In relation to the male assaults female charge you are convicted and sentenced to imprisonment for six months and that is cumulative on the other sentence.

[26] In relation to the breach of bail I take into account the matters which are set out in your letter and your guilty plea and impose one month’s imprisonment in relation to that charge.

[27] All sentences are cumulative which make a total of 23 months’ imprisonment.

[28] I just want to refer to your letter, Mr Wilson. It is clear that you have had much pain and sadness in your life and have had a difficult life. You express the desire to change. You clearly have been severely affected by the loss of your brother who was clearly your sole support and someone that you were very close to. Your letter is eloquent. It is well expressed and well written. I have dealt with it last because I think it is important that you be sentenced on these charges first.

[29] It is important not to live your life through the eyes of your childhood. You need to make changes. You are the only person who can make them. I hope that you can complete any post-release conditions that are imposed, and that you equip yourself to completing those because you do need to address the issues of your relationship difficulties and your anger management. I hope that you can.

J A Binns

District Court Judge