R v Wellm - [2009] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND
CA581/2008
[2009] NZCA 175
THE QUEEN
v
BRETT STUART WELLM
Hearing:25 February 2009

Court:Chambers, Gendall and Allan JJ
Counsel:L O Smith for Appellant

A R Burns for Crown

Judgment:7 May 2009 at 11 am

JUDGMENT OF THE COURT

A        The time for appealing is extended.
B        The appeal is allowed.
C        The order requiring the appellant to serve a minimum term of imprisonment of 17 years is quashed. In substitution therefor, an order is made requiring the appellant to serve a minimum period of imprisonment of 15 years.

REASONS OF THE COURT
(Given by Chambers J)
A three hour rampage
[1]       At 5.30 pm on 26 November 2007, Brett Wellm, the appellant, aged 43, went up to a house in Howick. He was carrying a large red Bible – and, concealed, a knife. He knocked on the door; Frances Gavin, aged 83, answered. She was reluctant to let Mr Wellm in, but, using the Bible, he managed to persuade her to let him in. He immediately became aggressive towards his victim. He forced Mrs Gavin downstairs into the garage area. He tied her up. He then assaulted her using a spade and a pair of hedge clippers he found on the premises. He struck her with these items, hitting her head, her torso, and her arms. He also punched and kicked her. The sentencing judge, Harrison J, rightly termed the attack “barbaric”.
[2]       Mrs Gavin tried to play dead. Eventually Mr Wellm left her in the garage, semi-conscious and lying in a pool of blood. Mr Wellm went upstairs and stole some items, which he put in his backpack. He then deliberately lit fires in the kitchen, the lounge and the bedrooms. When he left the house, it was ablaze, with Mrs Gavin tied up downstairs and unable to escape.
[3]       Fortunately, a member of the public saw smoke coming from the house. He called the fire service. They put the fire out, but not before a great deal of damage had been caused to the house. Thankfully, Mrs Gavin was saved. She spent 25 days in hospital. She was treated for a fracture to the skull, scalp lacerations, fractures to her ribs, and what were called “de-gloving” injuries to her arms, hands and fingers.
[4]       Leaving the house ablaze, Mr Wellm returned to his girlfriend’s flat nearby. A short time later, he arranged for a taxi to pick him up to take him to Manurewa. The taxi, shortly after setting off, was stopped at a police cordon. A little later he ordered the taxi driver to return to his girlfriend’s house. Again, the taxi was held up by the police cordon. Mr Wellm got out of the taxi, handing the taxi driver a stolen cheque to pay for the fare.
[5]       From there, Mr Wellm walked to another address in Howick, the home of Jann and Brett Aspden. He broke in. Mr Aspden arrived home from karate training at about 8.30…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wellm

Details

AGLC: R v Wellm [2009] NZCA 175
Case: [2009] NZCA 175
Decision Date: 7 May 2009

CaseChat Overview and Summary

Brett Stuart Wellm, the appellant, appealed against the minimum period of imprisonment (MPI) imposed by the sentencing judge. The appellant pleaded guilty to several charges including attempted murder, assault, aggravated burglary, arson, aggravated burglary, and threatening to kill a police officer. The sentencing judge imposed a sentence of preventive detention and an MPI of 17 years. The appellant did not appeal the preventive detention sentence but appealed the MPI, arguing it was excessively long. The appeal was filed over a month late, but the Court of Appeal granted an extension of time.

The Court of Appeal considered whether the MPI was manifestly excessive. The sentencing judge had undertaken a two-stage test under s 89 of the Sentencing Act 2002. The first stage required an MPI to reflect the gravity of the offence, which the sentencing judge fixed at ten years. The second stage required an MPI for the purposes of the safety of the community in light of the offender's age and the risk posed by the offender. The sentencing judge fixed the MPI at 17 years, concluding that the appellant was beyond reformation and would continue to cause great physical and emotional harm, or more likely take a life, if released back into the community. The Court of Appeal considered the submissions of the appellant's counsel, who argued that the sentencing judge failed to give any weight to the appellant's guilty pleas and the fact that the Parole Board would not release the appellant until satisfied he did not pose an undue risk to the safety of the community. The Court of Appeal also considered the appellant's submission that the length of the MPI was significantly out of line with comparable cases. The Court of Appeal allowed the appeal and substituted an MPI of 15 years.

The Court of Appeal quashed the MPI of 17 years and substituted an MPI of 15 years. The Court of Appeal also noted that the sentencing judge had erred in imposing preventive detention on all charges, even though only one of them was a qualifying offence. The Court of Appeal mentioned this point simply to ensure that High Court judges were aware that s 87 of the Sentencing Act did not permit the imposition of preventive detention for non-qualifying offences simply because the offender was being sentenced at the same time for a qualifying offence. This error on the judge's part had no practical effect, as the indeterminate sentence properly ordered on the attempted murder charge prevailed.

Orders