Wills v Police [2014] NZHC 3291 (17 December 2014)

Last Updated: 26 August 2015

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202(1) OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2014-463-77 [2014] NZHC 3291

BETWEEN	MORGAN HARRY WILLS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 December 2014
Counsel:	R Webby for Appellant M L Wong for Respondent
Judgment:	17 December 2014

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Adams Law, Tauranga

_{Crown Law, Wellington}

WILLS v NEW ZEALAND POLICE [2014] NZHC 3291 [17 December 2014]

The appeal

[1] Mr Wills appeals against an effective sentence of two years and one month’s imprisonment. The sentence was imposed by Judge Menzies, in the District Court at Waihi, on 23 September 2014.¹ Sentencing followed the entry of guilty pleas to charges of wilful damage and, more seriously, sexual connection with a girl aged 13 years.

[2] On behalf of Mr Wills, Ms Webby submits that the sentence was clearly excessive. There are two reasons for that. The first, she submits, is that the starting point was too high. Alternatively, Ms Webby contends that the allowance for youth and prior good character was too little. If the sentence became two years imprisonment or less, the possibility of home detention comes into play.

Facts

[3] The facts were summarised by Judge Menzies in a pithy manner:

[2] Dealing firstly with the lesser matter of wilful damage, the background circumstances are that the owner of the Whangamata Food Market was asleep in the rear of his premises when he was awoken by glass breaking. He came out to the store and noticed a known male putting his hand through the hole in the glass. The witness has spoken to the defendant who showed signs of intoxication. The witness stated he would check the security cameras and as a result the defendant ran away. He was subsequently spoken to by police and admitted breaking the window but admits that he was very intoxicated that night.

...

[5] The circumstances were that in April 2014 the victim went to the property in Whangamata where the defendant was staying. At about 6.00 pm in the evening a family friend of the victim’s went to the same address looking for the victim. She found her at that address with the defendant at which time the witness informed the defendant that the victim was only 13 years old and he was not to associate with her. That victim informed the defendant that if he went near the victim again she would call the police.

[6] The victim returned home and remained in contact with the defendant throughout the night by texting him. He encouraged the victim to return to his place that night. At 9.00 pm the victim has snuck out of her house and returned to the address where the defendant was waiting. She fell asleep in the defendant’s bed and woke up with the defendant kissing her and digitally penetrating her vagina. The defendant encouraged the victim to

¹ Police v Wills DC Waihi CRI-2014-079-253, 23 September 2014 (Judge Menzies) at para [28].

perform oral sex on him. He then put her on her hands and knees and had vaginal and anal sexual intercourse with the victim. Once the victim’s family realised she was not at her home address, her father went to the address where the defendant was and the victim was located in the defendant’s bed. As a result of the sexual intercourse the victim sustained certain injuries which continue to cause her problems.

[7] In explanation and discussion with the police the defendant admitted having sex with the victim and in explanation stated it was his birthday and he was too intoxicated to remember exactly what happened.

Sentencing in the District Court

[4] Understandably, the Judge took the sexual connection charge as the lead offence. He considered two recent decisions of the Court of Appeal.² Taking into account relevant aggravating and mitigating factors, and alive to the need for consistency in sentencing, the Judge said:

[28] So I take a starting point of three years’ imprisonment. I deduct nine months for the guilty plea which leaves a sentence of 27 months. I deduct a further two months for the defendant’s youth and remorse, which leaves an end sentence of 25 months or two years and one month. So that is the sentence that I impose on the charge of sexual connection, two years and one month’s imprisonment.

[5] On the charge of wilful damage, Mr Wills was convicted and discharged.

Calculation of end sentence

[6] During the course of today’s appeal hearing, an issue arose as to the way in which the Judge calculated the end sentence, having regard to the starting point and mitigating factors that he took into account. Ordinarily, the order in which the deductions are made is unlikely to affect the question whether the sentence is manifestly excessive. However, in this case, it could do so because the end sentence of two years and one month’s imprisonment is outside the range whereby a sentence of home detention could be imposed.

[7] If the calculation were done in a different way, it may bring the sentence below the home detention threshold. That depends, in the context of this case, on whether the mitigating factors were, in any event, assessed at too low a level.

[8] The point that has arisen in that regard is that the relevant sentencing methodology involves deducting mitigating factors other than the guilty plea before deducting the credit for guilty pleas from that net calculation.³

Analysis

[9] Ms Webby’s first point is that the starting point was clearly excessive. With respect to the argument she has raised, I do not agree. My reasons for that conclusion are:

(a) First, the maximum penalty available for an offence of this type is one of 10 years imprisonment. A starting point of three years imprisonment represents about 30% of that maximum penalty.

(b) Second, there was a significant age disparity between Mr Wills and the young girl. He was aged 19 years, and she was 13.

(c) Third, a family friend spoke to Mr Wills in the presence of the girl earlier in the day on which the offending occurred. The friend of the girl’s family told Mr Wills that the girl was only 13 years and that Mr Wills should not associate with her. Mr Wills was put on notice by her that if he did not comply with that direction, she would call the Police.

(d) Fourth, after the victim had returned to her home, Mr Wills and she exchanged text messages, during the course of which she was encouraged to return to his home in Whangamata. She left to go to his house at about 9pm. Other occupants in her home, including her parents, were unaware of that. When she got to his home, the offending occurred.

(e) Fifth, the offending was serious. Various types of sexual activity occurred: kissing, digital penetration, oral sex, vaginal intercourse and

anal intercourse. As a result of the sexual intercourse, injuries were suffered by the victim, which continue to cause problems for her.

[10] Ms Webby advised me that Mr Wills was grossly intoxicated on the day in question and, when he gave instructions to her, could not remember having been told about the girl’s age or the content of any of the text messages. While that may explain to some degree the bad behaviour in which he engaged, it is not a mitigating factor on sentence.⁴

[11] The Judge’s starting point of three years imprisonment cannot be regarded as excessive. The offending was serious. While at one level it might be said there was some willingness on the part of the victim to engage, her obvious immaturity and Mr Wills’ greater age at least neutralised any effect such a submission might have.

[12] The next question is whether the Judge gave inadequate credit for youth and prior good character. There was no special type of remorse which would fall outside of the credit for guilty pleas for which Hessell v R⁵ provides.

[13] Mr Wills had not previously been before a criminal Court. As to youth, Mr Wills was 19 years of age; as such he was at the lower end of the spectrum in respect of which credit for youth might be considered appropriate. Nevertheless, the probation officer who prepared the pre-sentence report commented specifically that Mr Wills appeared “very self-focussed and immature”. The report writer did so in the context of stating that Mr Wills was displaying little victim empathy and opining that he was at high risk of reoffending due to his use of alcohol and the impact of the offence in issue.

[14] The effect of Judge Menzies decision was to give a credit of two months for youth and previous good character. In the context of a starting point of three years imprisonment, that amounts to 5%. That credit seems to me to be a little miserly, given the way in which the Court of Appeal has explained in recent times some of

_{the effects of immaturity on youths.}⁶ _{Even at the age of 19 years I would have}

⁴ _{Sentencing Act 2002, s 9(3).}

⁵ _{Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 (SC) at para [64].}

⁶ Generally, see Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 (CA) at paras [50]–[55].

thought a credit in the vicinity of 10% would have been appropriate. I consider that the Judge did err in the credit that he gave in that regard.

[15] Taking the starting point of three years imprisonment and deducting a credit of 10% requires a deduction of a period of four months from the sentence. Then applying the discount for guilty pleas of 25%, the end sentence becomes two years imprisonment. That leaves open the possibility of home detention.

[16] No electronic monitoring sentence is available in Whangamata or in other areas of the Coromandel. Therefore, home detention was not considered as a viable alternative by the probation officer.

[17] Ms Webby indicates to me that there may be an address available in an area where electronic monitoring can be achieved. I am concerned about the possibility of allowing the appeal on the basis of imposing a sentence and granting leave to apply for home detention in substitution because it may require the Judge to order home detention in circumstances where Mr Wills might be found ultimately to be unsuitable.⁷

[18] For that reason, I am content to remit sentencing to the District Court on the basis that the end sentence should be two years imprisonment but with the Court’s ability to assess whether a sentence of imprisonment of that length or home detention is more appropriate, once a report has been obtained in respect of the suitability of

_{Mr Wills, the occupants and the property for electronic monitoring.}

⁷ As to the extent of the District Court’s jurisdiction in that event, see White v Police HC Napier

CRI-2010-441-51, 16 December 2010 (MacKenzie J), at paras [15] and [16].

Result

[19] The appeal is allowed. The sentence imposed in the District Court is set aside. The proceeding is remitted to the District Court for re-sentencing on the basis

_{outlined in this judgment.}⁸

_{P R Heath J}

⁸ Criminal Procedure Act 2011, ss 250(2)(a) and 251(2)(c). See also para [18] above.