Police v Wilson [2016] NZDC 9676 (25 May 2016)

Last Updated: 18 November 2016

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT DUNEDIN

CRI-2016-012-000259 [2016] NZDC 9676

NEW ZEALAND POLICE

Prosecutor

v

ANDREW WAYNE WILSON

_Defendant

Hearing:	25 May 2016
Appearances:	S Sluis for the Prosecutor M Scally for the Defendant
Judgment:	25 May 2016

_{NOTES OF JUDGE K J PHILLIPS ON SENTENCING}

[1] Mr Wilson, I thank Ms Scally for her help in the submissions that she has put before me for your sentencing today which is a mix of re-sentencing on a breach of a protection order; sentencing for breaches of the sentence that was then imposed upon you; and a further sentence for re-offending along similar lines. I think that the starting point has to be the summary of facts for the two charges that relate to the breach of the protection order that you were sentenced on earlier this year, which related to offending in February 2015, upon which you received a 12 month intensive supervision sentence in the Oamaru District Court.

[2] The offending for which you received intensive supervision was a breach of protection order in February-March 2015. That related to matters involving your actions with [victim details deleted], you using the Internet to enable you to offend.

_{You pleaded guilty to the charge and were convicted as I have said. You were placed}

POLICE v WILSON [2016] NZDC 9676 [25 May 2016]

on intensive supervision with judicial monitoring and were ordered to pay emotional harm of $1000 on the settlement of the sale of your house (of course that has not been paid). I am being told by Ms Scally, your current counsel, that the house is going to be sold by way of a mortgagee sale. The special conditions of your intensive supervision included conditions that you were not to possess or use any electronic device capable of accessing the Internet; you were not to contact your victim, [victim details deleted]. Probation was notified and became aware that you used an Internet capable device to contact the victim in breach of both conditions. I note also, with alarm, that the report I have shows you only superficially engaged with the sentence conditions. You declined to discuss your offending; you were told that you had to do certain things and you just acted exactly the opposite; you were not communicating information to your Probation Service. You were assessed as being a high risk of causing further psychological harm to your victim.

[3] The intensive supervision sentence, a merciful sentence when one has regards to the overall situation relating to your offending, was rejected by you. That sentence was cancelled back in February. You are for re-sentence today on the breach of protection charge. I need to take into account the fact that you had done part of the intensive supervision sentence but only to a stage of where it was of very little point or of use to anybody. It certainly did not assist you because what then happened is this.

[4] You, on between 7 and 14 January 2016, went onto a website using a non de plume, “Tom Looking”, and made contact directly with [victim details deleted]. She was aged 18. (She was younger when you first offended against her). She did not know or believe she was communicating with [the defendant]. You consistently and persistently throughout the day had inappropriate conversations with her. You asked her for nude photographs of herself. She sent those 13 photographs containing photographs of her breasts and her genitalia. You sent by response two photographs of your penis in an erect position. In the ongoing “chat” you asked her on two separate occasions if you could have sex with her. You asked that she agree to be blindfolded so that she could not see you. This type of contact went on during 14 January and between 29 January and 31 January. Your identity finally became known to [victim details deleted]. She communicated her discovery

to her mother who contacted the police. You admitted to the police that you had offended in this way; that you knew it was [victim details deleted]. When asked about requesting to have sex with her you declined to comment. The facts of this repeat offending detail how serious it is.

[5] The conditions of your sentence of intensive supervision were extremely clear. You were not to possess any device capable of accessing the Internet; you were not to have contact. I find it really, really surprising that I read the report filed with the application for cancellation and compare it to what was being written to a Judge on a monitoring report that everything was going well and that you had completed everything. I do not know whether you were getting the full oversight that you needed to have when I note the difference.

[6] The Judge who took the plea called for a report under the terms of s 38

Criminal Procedure (Mentally Impaired Persons) Act 2003 as to disposition. You were interviewed. The report really is of little help to me because I note that (and I think intentionally) you did not tell the interviewer that the charge you were facing was a repeat of a charge that you had faced back in April-May 2015. I note that the psychiatrist says that you were feeling guilty and ashamed. In reality, if you had those feelings at all, which I doubt, you were, in my view, manipulating the psychiatrist. He considered that you suffered from what was called an Adjustment Disorder with Anxiety Features due to the stress you were under. That there were some “Cluster B/borderline personality disorders”. In the end I do not think that the psychiatrist was aware of the full impact of what you had done or what and how it had occurred in the past. I also note that the Restorative Justice process was unable to be completed.

[7] On my request I have now a detailed victim impact statement from by your [relationship details deleted] Tiffany. She took the protection order out in 2013 [details deleted]. That was as result of you going to the property she lived in and destroying a lot of her goods. She found out that [victim details deleted] was on a site called Tumblr. You found out her blog name and you were pretending to be someone else talking about sexual matters (in fact pretending to be a female). [Victim details deleted] got closer to this “friend” through talking to you. She

thought that this person was a friend. Her reaction when she found out it was [the defendant] has caused major difficulties for her. She lost the “friend”; she had discussed matters of a sexual nature with this ‘friend’; and had been misled by how you had responded and the way you had responded to her. Your prosecution and conviction changed her personality according to her mother. She began drinking; making bad choices with friends. There was a gap in time I am quite sure Tiffany thought that things might come right. In 2016 however, [victim details deleted] went onto a dating site called “Seeking Arrangements”. She made contact as I have already said. Her mother thinks that your [victim details deleted] felt sorry for you, not knowing who you were because of what you were saying about your life in these “chats”. The person she was communicating with wanted more and more videos from her; a sexual relationship with her; more and more pictures of her naked. When she tried to close it off, she found a clue as to your true identity. You were discovered. Tiffany believes she is a victim as well as [victim details deleted]. This is a man that this woman loved once. She thinks that you [victim details deleted], not devastating her life. The difficulties those two have [details deleted], in their ongoing life, is of major significance in your offending.

[8] I note that you have convictions relating to alcohol and theft. They are not really relevant to the present charge. The pre-sentence report I have read and read it again. You deny the obvious sexual elements with your offending. It was just so sexualised that what you are saying to a probation officer is unbelievable. I find it most alarming that when one considers what you did that you do not consider it sexual or intrusive and a form of obsession. You did not comply with intensive supervision. The pre-sentence report confirms that the key considerations in that sentence were never met.

[9] When I looked at your overall offending I considered a term of imprisonment with totality resulted in a starting point somewhere around three years. I consider that you had been given an opportunity by a merciful sentence on your first offending. You had made totally inappropriate contact with [victim details deleted] of a sexualised nature but Judge Maze clearly saw that there were reasons for intensive supervision. Help was offered to you, which you either ignored or rejected.

One way or the other it did not work. Then you saw fit to repeat what you had done but also elevating the seriousness and intensity of your offending.

[10] You are entitled to credits for your guilty plea. I do not accept the argument put before me that you are entitled to credits for matters relating to mental disorders and similar such things. Yes, you need treatment. I am quite sure of that. In the end that is treatment that needs to be given by a psychologist for your clearly sexual perversion, I use that word advisedly, that is innately involved in this type of offending. I do not see how you can, with any level of intelligence, argue to the contrary. I have considered the amount of credits you should get. I have three sets of offending to deal with. I have the re-sentencing. You of course had been on sentence despite you not having completed it appropriately at all. But I must give you allowance for that. You are facing sentence also in your arrogant rejection of your conditions of the intensive supervision by using Internet capable devices and making contact with the person you were not allowed to do so. Then I have to sentence you on the matters relating to the breach of protection order in January of this year which I consider when one looks at it in its entirety is abhorrent offending.

[11] I start my sentence at three years. I give you the full guilty plea credit of one quarter (25 percent). Against that I look at issues of totality. I have decided that an end sentence imposed upon you of one year and 10 months is the appropriate level of sentence. It is imposed upon you in this way.

[12] On the re-sentencing, on the matters relating to the breach of protection order between 8 February 2015 and 4 March 2015, taking into account that you were particularly on sentence, taking into account the maximum sentence of three years, you are re-sentenced to a term of imprisonment for a period of five months.

[13] On each of the two charges relating to breach of the conditions of intensive supervision I have regard to the charges and on each of those charges you are sent to prison for two months. On charging document 172 relating to using an Internet capable device without written approval, that two month sentence is made cumulative on the five month sentence I have imposed on the breach of the protection order.

[14] On the two charges of the breach and of the protection order, on the charge of breach of protection order relating to the contacting of [victim details deleted] on the matters detailed in the summary of facts, I send you to prison for one year and three months, cumulative on the two months that I have imposed on the breach of intensive supervision. On the other breach of protection order you are sent to prison for one year.

[15] Ms Scally and I, your counsel and I, had a discussion about a way in which release conditions will address your offending. As I total the cumulative provisions of the sentence I have just imposed, I consider that I must impose release conditions.

[16] I impose the special release conditions as detailed in the pre-sentence report of 25 February. You will attend a psychological assessment by and complete any treatment or counselling as recommended by the psychological assessment to the satisfaction of your probation officer. Hopefully then you can get the help you so desperately need. The release conditions both standard and special are for six months from sentence expiry date.

[17] It has been made very clear to me by a report I have from the victim’s advisor that the victim wishes you be held publicly accountable for your actions. She believes publication of your name will give her closure regarding your offending. She does not want you hiding behind any form of suppression order. She says [details deleted] so publication of your name will not hurt her. I make a final order for the suppression of name of the complainant in each of these charges and of [relationship details deleted] who has supplied the victim impact statement.

K J Phillips

District Court Judge