Wilson v Police [2012] NZHC 2503 (26 September 2012)

Last Updated: 2 October 2012

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-442-18 [2012] NZHC 2503

BETWEEN CHARLES ANDREW WAKAWE WILSON

Appellant

AND POLICE Respondent

Hearing: 25 September 2012

Counsel: K W Jones for Appellant

M A O'Donoghue for Respondent

Judgment: 26 September 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] On 26 May 2012 Mr Wilson assaulted his partner. She was pregnant at the time. He punched her face, leaving a cut to her lip and swelling to her face. Mr Wilson’s partner reported the assault to the police. On 6 June 2012 Mr Wilson texted his partner asking to see their son before going to jail. She agreed to come out to the Maitai Motor Camp, where he was staying, on the basis that there be no arguing and no fighting. But when she got there an argument broke out. Mr Wilson accused his partner of being a “nark” in going to the police. She tried to get out of the car but he struck her face and grabbed her around the throat, to the point where she felt unable to breathe. She bit Mr Wilson and eventually he desisted and walked off. The police were called. When he arrived at the police station he sounded off at large, threatening to kill both his partner and himself. While in custody he wrote a letter to his small son, and in doing so breached a protection order.

[2] Mr Wilson has 58 previous convictions. Most are for petty dishonesty and motoring offences. Two points are notable. The first is that since 2003 his record

WILSON v POLICE HC NEL CRI 2012-442-18 [26 September 2012]

has been relatively clean, with two motoring offences and one antisocial behaviour offence only in that time. Secondly, and more importantly, there is nothing in Mr Wilson’s record showing any propensity to violence. He has only one previous conviction for violence (assault with intent to rob, in October 1995).

District Court decision

[3] Mr Wilson pleaded guilty to charges of male assaults female, assault with intent to injure (the 6 June 2012 incident), threatening to kill and breach of a protection order.

[4] The sentencing Judge grouped the charges together, taking the assault with intent to injure charge as the lead offence, but taking all the offending together as a single “job lot”. A start point of 15 months’ imprisonment was adopted. The full 25 per cent discount available for an early guilty plea was given, reducing the period to

11 months. The Judge decided that he could not give any further discount for remorse, finding the expression of regret by Mr Wilson at sentencing to be self- serving.

Appeal

[5] Mr Wilson now appeals on the basis that the sentence is manifestly excessive. For Mr Wilson, Mr Wayne Jones submits that while the charge was serious ones, they were not reflective of any propensity for violence towards women or others for that matter. The Court would be entitled to infer that the accused’s behaviour on that occasion was out of character. While not diminishing the wrongfulness of his client’s actions, the injuries were minor and transitory. The probation report had recommended a sentence of 18 months intensive supervision. That reflected in part the fact that the relationship between Mr Wilson and his partner was a failing one, and that they had since separated with the appellant commencing a new and more satisfactory relationship.

[6] Mr Jones referred also to a recent decision of Justice Chisholm in the High Court at Timaru in R v Richardson.[1] That case had a number of striking similarities to the present one. The accused there was sentenced on charges of male assaults female, assault with intent to injure and threatening to kill. The victim again was the accused’s pregnant partner. The violence meted out to the victim in that case arguably was worse than in either of the two incidents here. Mr Richardson was

sentenced to four months’ home detention on the charge of assault with intent to injure, with a concurrent sentence of four months’ home detention on the male assaults female, and convicted and discharged on the threatening to kill charge. There are of course as there always are in these matters some points of distinction between the two cases. Mr Richardson was younger, only 19 years old, and he had fewer prior convictions. Nonetheless the difference in sentencing is striking, and the decision of Richardson was not referred to the sentencing Judge in the present case.

Crown submission

[7] Mr Mark O’Donoghue for the Crown submits that the aggravating features of the assaults, coupled with the threat to kill and the later breach of protection order (committed while in custody), more than warranted an effective sentence of 11 months’ imprisonment. The fact that Mr Wilson had only one previous violent conviction was expressly considered by the sentencing Judge. No uplift was applied, and no propensity for violence was alleged. But of course with 58 previous convictions, Mr Wilson could not expect any discount for good character. Home detention was not an appropriate remedy in this case, not only because a deterrent sentence of imprisonment was appropriate to meet the aims and objectives of sentencing, but also because the home detention address offered was inappropriate.

Discussion

[8] The consequence of ss 115 and 119 of the Summary Proceedings Act 1957 is that this is a general appeal to be heard by way of rehearing. The onus lies on Mr Wilson to satisfy the Court that the grounds of appeal have been made out and

that this Court should differ from the original decision. The appellate court must come to its own view on the merits.[2]

[9] The High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing Judge. It is not the function of this Court to tinker with sentences, or alter them unless it feels that the sentence imposed is contrary to both principle and conscience.

[10] Two points require that in this case I intervene.

[11] First, as to principle, in this case the learned Judge did not have referred to him the decision of Chisholm J in R v Richardson. Had that case been referred to him, I do not think the Judge would have adopted a 15 month starting point for the totality of the offending in this case.

[12] Secondly, a closer assessment of Mr Wilson’s record shows that there is no propensity in his character for violence, and that he has by and large behaved himself for the past nine years. It is difficult to know exactly how to allow for these factors in his sentencing. To not uplift the starting point for propensity, while recognising that there can be no discount for good character, does not in the end seem to do justice in this case.

[13] Doing the best I can in the circumstances, and considering the matter afresh, I consider that the s 7 and 8 purposes and principles of sentencing would be sufficiently met in this case of deplorable but out of character violence by a sentence of 12 months’ imprisonment at most, with a full 25 per cent discount thereon for the early plea of guilty entered. The net result is that the sentence imposed should have been one of nine months.

Result

[14] Appeal allowed. Sentence of 11 months’ imprisonment set aside. Sentence of nine months’ imprisonment substituted therefor.

Stephen Kós J

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor, Nelson for Respondent

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[1] R v Richardson [2012] NZHC 1465.

[2] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).