Lindsay Neville Wilson v New Zealand Police

[2023] NZHC 3781

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-113

[2023] NZHC 3781

BETWEEN

LINDSAY NEVILLE WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 December 2023
Appearances:	PT Birks for the Appellant T Afoa for the Respondent
Judgment:	19 December 2023

JUDGMENT OF HARVEY J

[on appeal against sentence]

This judgment is delivered by me on 19 December 2023 at 2 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

P T Birks, Rotorua

Gordon Pilditch, Office of the Crown Solicitor, Rotorua

WILSON v NEW ZEALAND POLICE [2023] NZHC 3781 [19 December 2023]

Introduction

[1]    Camille Malfroy was a well-known French engineer and local body politician who arrived in New Zealand in the 1860s.1 In 1886, he was appointed by the Crown Lands Department as engineer in charge of works connected with the Rotorua wharf and was overseer of works associated with the Rotorua Sanatorium. In 1891, he became chairman of the Rotorua Town Board. He died in 1897 and was buried in Rotorua. Malfroy Road is named after him. A silicone bronze bust of Mr Malfroy over 70 cm in height was erected at the Rotorua Government grounds in 2007. The statue was displayed next to the Malfroy geyser. It was fixed down with four large bolts making it difficult to remove and earlier this year was valued at $50,000.

[2]    Lindsay Wilson pleaded guilty to the theft of the statute. It was eventually retrieved with his assistance. The cost of repairing the damage that the statue had sustained was estimated at approximately $17,000. On 25 August 2023, his Honour Judge Spear sentenced Mr Wilson to 15 months’ imprisonment and imposed six months special release conditions.2 He also remitted Mr Wilson’s $13,000 in outstanding fines.

[3]    Mr Wilson now appeals that decision. He argues that a community-based sentence should have been imposed. The appellant also submitted that Judge failed to consider the historic nature of his previous convictions and instead considered irrelevant and speculative matters.

[4]The Police oppose the appeal.

The offending

[5]    The facts are uncontroversial. Early on 28 February 2023, Mr Wilson parked his Toyota van near the rear of the Rotorua Blue Baths complex in the Government Gardens. He then attempted to remove the Camille Malfroy statue. Those unsuccessful attempts were followed by a more concerted effort involving the use of

1      Philip Andrews “Malfroy, Jean Michel Camille” (July 2015) Te Ara - the Encyclopedia of New Zealand, < v Wilson [2023] NZDC 18333.

a crow bar and strop. Eventually, Mr Wilson succeeded in removing the statue, at the same time causing damage to it and its base. He then placed it in his van and drove off. When questioned, he admitted taking the statue. As noted, it was later located and repaired.

District Court decision

[6]    The Judge confirmed at the start of sentencing that he was obliged to take a stern approach with anyone damaging “public features” as they are part of the community’s fabric. As the statue was of particular relevance to the Rotorua community and would have required fundraising and ratepayer contributions, this too made the statue an important local feature. The Judge emphasised that he considered the offending had caused serious harm and that the appellant needed to be held accountable.

[7]    As to a starting point, the Judge considered 18 months’ imprisonment was justified. He then imposed a three-month uplift for previous offending while allowing a 25 percent guilty plea discount thus arriving at a 15-month imprisonment end sentence, along with post release and special conditions. As Mr Wilson has no means of paying for the repairs, the Judge considered that a sentence of home detention would not be appropriate in the context of sentencing principles including deterrence.

Approach on appeal

[8]    The approach to sentence appeals is well-settled. The Court must allow the appeal if satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.3 The sentence below must be shown to be manifestly excessive or wrong in principle.4

Submissions

[9]    Mr Birks submitted that while it is accepted that the appellant had stolen the statue, it was recovered with his assistance with the cost of repair for that being

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

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

$16,800. In addition, counsel confirmed that the sentencing report recommended an electronically monitored sentence rather than imprisonment.

[10]   Further, Mr Birks argued that the Judge did not adequately take account of the fact the appellant’s previous dishonesty offending occurred between 1984 and 1993 followed by a long gap to 2021. According to counsel, this did not disclose a history of consistent and persistent dishonesty offending. The appellant had completed sentences including home detention regarding drug-related offending in 2010. Two breaches of community work in 2021, along with disqualified driving convictions in 1987, 1988 and 2012 are his only recorded offending of that nature. Mr Birks highlighted that the majority of this was historic.

[11]   Moreover, counsel contended that the Judge over-emphasised the appellant’s drug offending which should have been recognised as a medical issue.

[12]   Mr Birks argued that the bust is not a taonga of significance with any great cultural value. Malfroy is generally forgotten apart from the fact that there is a street named after him. The Judge was simply speculating when he concluded that the bust may have significance to some people since this was not supported by evidence.

[13]   In addition, the Judge failed to consider that the appellant had family support. He also over-emphasised harm and focused on the notional value rather than the cost of repairs. For these reasons he argued that the sentence should be set aside and replaced with one of home detention.

[14]   Ms Afoa submitted that the Judge correctly balanced the Sentencing Act 2002, s 7 factors when determining whether imprisonment would be imposed. According to counsel, the sentence reflects the seriousness of the offending and the harm caused to the community. She emphasised that the principle of accountability ensures that the appellant takes responsibility for his actions. As the appellant could not pay towards the $16,800 reparation this would have encouraged the Judge to impose a sterner sentence. Accountability satisfies both the community’s need for justice and also demonstrates that the legal system upholds its duty to protect public interests.

[15]   In addition, Mr Afoa contended that the principles of denunciation and deterrence are both equally relevant. When incorporated into the sentencing calculation, they send a clear message that this kind of offending is unacceptable. Further, Ms Afoa submitted that deterrence is critical in discouraging potential offenders where stern penalties for the theft of public property are imposed. The prospect of significant punishment can deter which helps prevent similar offending. All of these factors were properly taken account of by the Judge when he imposed the end sentence according to counsel. As a result, Ms Afoa contended that it could not be characterised as manifestly excessive and so the appeal should be dismissed.

Discussion

[16]   I agree entirely with the learned Judge’s sentiment that anyone who defaces and damages public monuments needs to be held accountable for their actions. While I disagreed with the approach of both counsel concerning the value, if any, beyond monetary, of the statue to the community, respect for publicly owned property, including monuments of local significance, should be protected by the proper application of deterrence and denunciation principles in sentencing. That said, I am not convinced that the sentence imposed in this case was appropriate.

[17]   The Court of Appeal has observed that home detention is a “real alternative to imprisonment”, stating:5

It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.

[18]   In R v Byrne the Court of Appeal also held, in a dishonesty offending context, that home detention can meet sentencing principles of deterrence.6

[19]   This Court has previously observed that “taking account of reparation for sentencing purposes is not straightforward”.7 When considered in relation to remorse

5      R v Iosefa [2008] NZCA 453 at [41].

6      R v Byrne [2014] NZCA 32 at [5].

7      Wilton v Police [2015] NZHC 427 at [24].

an inability to pay is properly seen as the absence of a mitigating factor rather than an aggravating factor that could, for instance, reduce the discount given for remorse.8 Inability to pay may however be relevant to assessing the gravity of the offending where public funds are involved, for example in the non-payment of tax.9 Additionally, the Court must avoid the suggestion that affluent offenders can “buy” their way out of more severe sentences.10 In Hogan v Ministry of Social Development, a case concerning benefit fraud, the Full Court stated:11

[36] An ability or willingness to pay reparation and the payment of it may reduce loss caused by offending, so that personal circumstances may be given greater weight. Clearly an inability to pay reparation is not to be taken into account as a factor weighing in favour of imprisonment. Otherwise a “trade off” between reparation and imprisonment would favour those who had resources, although, ironically, those who have resources might be thought to have dishonest offending that is more culpable.

[20]   Arguably, that statement goes too far in that an inability to pay may be relevant to ss 7 and 8 principles such as the gravity of the offending, accountability and deterrence, which are in turn relevant to the decision of whether to impose imprisonment.12 But the underlying principle is apt in this case.

[21]   Mr Wilson is 55 years of age. His conviction history is mixed and arguably at the lower level of crime with a significant gap between his earlier and present offending, along with the 2021 theft of a car episode. Mr Wilson also appears to have addiction and abuse issues, particularly regarding alcohol it would seem, which are triggered when he has particular upset and dysfunction in his life due to relationship issues. Counsel confirmed that, based on the available evidence, including the report prepared for sentencing, Mr Wilson has a supportive partner who is keen to help him overcome his personal challenges and addiction issues. This includes making her home in Gisborne available for the purposes of home detention.

[22]   While I acknowledge that the PAC report sentencing recommendations are simply that – recommendations – that the Court need not slavishly follow, in this

8 At [25].

9      Bench v Cmr of Inland Revenue [2017] NZCA 435 at [17].

10     Wilton v Police, above n 7, at [24].

11     Hogan v Ministry of Social Development (2006) 23 CRNZ 500 (HC) (emphasis added).

12     Sentencing Act 2002, s 16. I note that s 7(1)(b) “to provide reparation for harm done by the offending” is excluded from the considerations under s 16.

instance, they are appropriate. In short, I consider that in the circumstances, a sentence of home detention is meets the sentencing principle of deterrence. Mr Wilson accepted responsibility when spoken to by Police and pleaded guilty promptly. He assisted in the statue’s retrieval. The aggravating features were the public nature of the property, its monetary value and the cost of repair. However, there was no premeditation or breach of trust. The theft was not sophisticated.

[23]   To ensure the necessary application of the deterrence and denunciation principles, I further consider that the sentence of 12 months home detention, being the maximum available, would have been a suitable sentence in this case. I arrive at the conclusion with the knowledge that Mr Wilson has spent over three months in prison since the date of sentence.

[24]   In summary, as foreshadowed, I consider that 12 months’ home detention is an appropriate sentence for this offending. As Mr Wilson has already served at least 3 months in jail, taking account of the short-term sentence release provisions, this will mean that the balance of his 12 months’ home detention sentence yet to be served is six months. I also agree that the post detention conditions and special conditions should remain unchanged so are replaced with identical conditions under s 80D as conditions of home detention and s 80N as post-detention conditions for six months following detention end date. In light of the time Mr Wilson has spent in prison the remission of his fines should not be disturbed.

Decision

[25]   The appeal against sentence is allowed. The sentence of 15 months’ imprisonment is quashed and replaced with a sentence of six months’ home detention to be served at the address set out in the PAC report.

[26]   Conditions for the duration of the sentence and six months following detention end date are imposed as follows:

(a)not to possess, consume or use any alcohol or drugs not prescribed;

(b)assessment, counselling and treatment for alcohol and drug abuse;

(c)submit to testing if required by either Police or probation; and

(d)any other counselling or programme that may be required.

Harvey J