Wiki v Police [2018] NZHC 2156 (21 August 2018)

Last Updated: 23 August 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-146 [2018] NZHC 2156

BETWEEN	VICTORIA MARIGOLD MARGARET WIKI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 August 2018
Appearances:	Appellant in person D Green for respondent
Judgment:	21 August 2018

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Auckland Copy To: The appellant

WIKI v POLICE [2018] NZHC 2156 [21 August 2018]

Introduction

[1] Victoria Wiki pleaded guilty on 12 April 2018 to one charge of wilful trespass,¹ and one charge of assault on a female constable.² She does not dispute what happened: essentially, she entered New World on Queen Street where she had previously been trespassed, and while being processed after her arrest, spat on an officer’s arm.

[2] Ms Wiki was sentenced in the Auckland District Court to 12 months’ supervision with special conditions, including that she undertake alcohol and drug counselling as directed by Community Probations.³

[3] Ms Wiki filed a notice of appeal on 9 May 2018, appealing both conviction and sentence. Ms Wiki did not file any submissions. The Police have responded to the notice of appeal with a one-page memorandum.

[4] This appeal was to have been heard on 30 July 2018. It was adjourned on Ms Wiki’s application so she could obtain proof that New World had trespassed her from its premises. Ms Wiki has not placed any further material before the Court in that regard. However, she has provided the Court with a letter dated 20 August 2018 from ACC responding to Ms Wiki’s request of 6 August 2018, asking for medical information in relation to Ms Wiki’s ACC injury claim from 1988. The letter advises that ACC is working on the request.

Factual background

[5] Ms Wiki does not dispute what happened on 26 March 2018, the day of her offending.

[6] She entered the New World at 125 Queen Street just before 9 am. Around a month prior, on 22 February 2018, she had been trespassed from the premises by New World for a period of two years. Despite being reminded by security she was not

1. Trespass Act 1980, ss 4(4) and 11(2)(a). The maximum penalty is three months’ imprisonment, or a $1,000 fine.

² Summary Offences Act 1981, s 10. The maximum penalty is three months’ imprisonment, or a

$4,000 fine.

³ New Zealand Police v Wiki [2018] NZDC 9729 at [4].

allowed inside, Ms Wiki continued to walk in and out of the store, swearing at staff and causing a scene.

[7] After leaving the store, Ms Wiki was arrested on Wyndham Street, and taken into custody. While the police officer, Jenni Hussey, was conducting a search of Ms Wiki, as she was authorised to do, Ms Wiki spat on her arm.

Approach to case

[8] Ms Wiki’s original grounds of appeal are unspecific. She alleges abuses of power and process by the New Zealand Police (and presumably she specifically has in mind the officer who processed her), and malice on the part of the New World staff member who signed the initial trespass notice.

[9] Ms Wiki also asserts, in general terms, breaches of the Privacy Act 1993 and the Trespass Act 1980. Finally, she refers to “s 53 of the Crimes Act 1961 and others”. Section 53, which provides a defence of moveable property with claim of right, has no obvious application here.

[10] Notwithstanding Ms Wiki’s general appeal against conviction and sentence, it is only the sentence appeal I need focus on today, given she has pleaded guilty to the charges, and given that she accepted the facts on which the charges and convictions are based. I proceed on that basis.

[11] I must allow Ms Wiki’s appeal against sentence if I am satisfied, for any reason, there is an error in the sentence imposed on her, and a different sentence should be imposed.⁴ In any other case, I must dismiss the appeal against sentence.⁵ The approach previously taken by courts on sentencing appeals continues to apply,⁶ so that the measure of error is that the sentence is “manifestly excessive”, a principle “well- engrained” in this Court’s approach to sentencing appeals.⁷

⁴ Criminal Procedure Act 2011, s 250(2).

⁵ Criminal Procedure Act, s 250(3).

⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].

⁷ At [33], [35].

[12] I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is “manifestly excessive” is to be assessed in terms of the sentence given, rather than the process by which it is reached.⁸

Analysis

[13] Judge Thomas’ sentencing notes are short and to the point. He reasoned:⁹

[2] You have similar convictions for offending like this over the years. But it is significant looking at your previous history that nothing much has gone wrong in the last few years. It is a shame to see you back before the Court again. When I find out though that you failed the drug and alcohol programme last time you were sentenced to supervision I can see why you are back in Court again. If you do not get the programmes done and graduate then inevitable you are doing to end up back in the dock again. If you are back in the dock again you are going to end up going back inside again. You have just got to get that programme done.

[3] Community Probation are prepared to take you back to get that drug and alcohol counselling done. You seem ready to do it. If they are ready to take you then I am satisfied that it is the least restrictive outcome for you.

[14] Based on that analysis, the Judge imposed two specific conditions. First, that Ms Wiki undertake any alcohol and drug counselling directed by Community Probations. Second, that she undertake any other assessment, treatment, counselling or programme directed by Community Probation.

[15] I find no fault in that approach.

[16] Supervision, a less restrictive option than community-based sentences of community detention and intensive supervision, is an appropriate sentence in light of Ms Wiki’s (relatively low) culpability.

[17] While the 12-month period is at the uppermost limit of the period that can be imposed,¹⁰ it is not out of range given Ms Wiki’s culpability. I note spitting, albeit

⁸ Ripia v R [2011] NZCA 101 at [15].

⁹ New Zealand Police v Wiki, above n 3.

¹⁰ Sentencing Act 2002, s 45(2).

seemingly innocuous, has been characterised as “highly offensive”,¹¹ and assaulting an officer is always inherently serious, often attracting short terms of imprisonment, except for one-off minor assaults, such as spitting and pushing.¹²

[18] But the key consideration here is Ms Wiki’s rehabilitative and re-integrative interests, which are the focus of a sentence of supervision. The Judge recognised the importance of, and Ms Wiki’s willingness to engage in, some form of alcohol and drug counselling. This was implicitly recognised as critical for her rehabilitation.

[19] In that vein, supervision was appropriate here as an attempt to “reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender”.¹³ The special conditions are appropriate for the same reason.¹⁴ It is likely the Judge had in mind her rehabilitative interest, in particular, the benefit of her having longer to work with her probation officer and engage with recommended programmes, when deciding on the 12-month period.

Result

[20] The appeal is dismissed.





Gordon J

¹¹ Chavez v Police [2016] NZHC 1111 at [51].

12. Kumar v Police [2014] NZHC 1659 at [32]; citing R v Taurere HC Whangarei CRI-2011-488-030, 7 July 2011.

¹³ Sentencing Act, s 46.

¹⁴ Section 50(c).