R v Wickens
[2019] NZHC 1894
•1 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-019-4429
[2019] NZHC 1894
THE QUEEN v
GRANT STEWART WICKENS
Hearing: 1 August 2019 Appearances:
J N Foster for Crown
C D Bean for Defendant
Sentencing:
1 August 2019
SENTENCING REMARKS OF PETERS J
Solicitors:Almao Douch, Crown Solicitor, Hamilton Bean Law Ltd, Hamilton
R v WICKENS [2019] NZHC 1894 [1 August 2019]
Introduction
[1] Mr Wickens, today I am sentencing you in relation to the kidnapping of Mr Mitchell Paterson on 12 July 2018, and on one charge of conspiring to defeat the course of justice which arises from events after Mr Paterson’s death.1
[2] You pleaded guilty to these charges on 18 June 2019. Justice Lang gave you what we refer to as a “first strike” warning at the time so I do not need to repeat that today.2
[3] I shall start today by summarising the facts of your offending. Once I have done that, I shall turn to the sentencing itself.
Facts
[4] In the early hours of 12 July 2018, you and others were at Leon Wilson’s house, he being the president of the local chapter of the Nomads gang. Apparently Mr Paterson had been “bad mouthing” Wilson, Wilson directed that Mr Paterson should brought to Wilson’s house and Simon Walker, who I sentenced this morning, went with two others, Dylan Boyle and Chloe Kerridge, to find Mr Paterson.
[5] At 2 am, you, Wilson and Christopher Smith drove to Mr Paterson’s address. By the time you arrived, Mr Paterson was in the car containing Walker, Boyle and Kerridge.
[6] All of you started on the five minutes plus return journey to Wilson’s house – Boyle, Kerridge, Walker and Mr Paterson in one car, and you, Wilson and Smith in the other with Smith driving. Mr Paterson was not a willing passenger and was struggling. He kicked out the back window of the car at which point all of you stopped, Smith got into the vehicle Walker and Mr Paterson were in, and you took over the driving from Smith.
1 Crimes Act 1961, ss 66, 209(b) and 116. Maximum penalty on the kidnapping charge is 14 years’ imprisonment and seven years’ imprisonment on the conspiracy charge.
2 Sentencing Act 2002, s 86B(1).
[7] Mr Bean has submitted that you did not realise that Mr Paterson was an unwilling passenger until he smashed out the back window of the car. I do not accept that. Two carloads of grown men would not have been required to collect Mr Paterson in the early hours of the morning if he was a willing passenger. You must have known what was going on.
[8] By the time all of you arrived at Wilson’s house, Mr Paterson was dead or very close to it, but no one called 111.
[9] Instead, you all hatched a plan to dispose of Mr Paterson’s body, namely that the body would be put in a car, and that car set alight. You helped get Mr Paterson’s body in the car, Walker drove off with the body, and you and Kyra Betteridge followed, buying petrol along the way.
[10] Having driven around all day, Walker and Betteridge decided to change the plan at which you point you opted out and left. Mr Bean again submits that I could infer you did not wish to be involved any more. I do not draw that inference. The summary of facts says that you left because you did not want to depart from the plan that Wilson had approved.
[11] All in all, eight people have been convicted of offences in relation to Mr Paterson’s kidnapping, death and the disposal of his body.
[12] Those largely on a par with you are Boyle, who drove the car containing Mr Paterson and who was involved briefly in planning the disposal of his body, and Betteridge and James Green, who were involved in the actual disposal.
Victim impact statements
[13] Everyone who was in Court this morning had the benefit of hearing the victim impact statements of Mr Paterson’s mother and father, Mr Craig Paterson and Mrs Valerie Paterson, and Ms Philippa Taitoko, the mother of Mr Paterson’s seven- year-old daughter.
[14] Mr Paterson was his parents’ only and much loved child. As their statements make clear, they do not ever expect to recover from his death. Both are devastated and their lives have been changed forever. And everyone in the courtroom this morning who heard those statements will be able to understand that.
[15] Mr Paterson was the devoted father to his young daughter, and she plainly adored him. Ms Taitoko reported how profoundly her daughter has been affected by her father’s death. She has become anxious to leave her mother’s side and she asks for her father constantly. The harsh reality is that she will not have her doting father to support her as she grows up.
Pre-sentence report
[16]I have read Corrections’ very thorough pre-sentence report.
[17] You were 33 or 34 at the time of the offending and you have had a long association with gangs and drugs. You had smoked methamphetamine that evening.
[18] You need help with your drug addiction and to sever your connections with any gang – which is apparently already underway – if you are to stay out of trouble. You say Mr Paterson was your good friend and you had warned him against badmouthing Wilson. You may have done. But whatever Mr Paterson may have said about Wilson or anyone else, nothing could possibly have justified all of you grown men setting out to kidnap him in the early hours of the morning and, as I said when I sentenced Mr Walker this morning, things were never going to end well for Mr Paterson.
[19] Then, to compound matters, you participated in many of the events that occurred to try and dispose of his body.
Sentencing process
[20] The first step in the sentencing process is to establish what we refer to as the starting point. This serves as a bench mark for offending of the type you committed.
It is a bench mark that would apply to anyone who acted in a way similar to you. It looks purely at the offending and takes no account of your personal circumstances.
[21] The second step of the process is to take account of matters that relate to you personally and which may require me to increase or reduce the period of imprisonment established by the starting point.
[22] Accordingly, please bear with me while I discuss these two stages and decide on your end sentence.
Principles and purposes of sentencing
[23] In fixing the starting point I need to hold you accountable for your actions, impose a sentence that denounces your behaviour, and which deters you, and others, from similar offending in the future. I am also required to treat you consistently with others, and to impose the least restrictive outcome appropriate in the circumstances.
[24] The best guidance for me today are the starting points adopted for Boyle on the kidnapping charge, and for Betteridge and Green on the conspiracy and mistreating charges.3
[25] Boyle was driving the vehicle that Mr Paterson was in. Mr Bean has submitted to me that your role was not as significant as all the others because you did not understand that Mr Paterson was to be kidnapped, or that he was being kidnapped, until he kicked out the back window of the Boyle car. As I have said several times, I do not accept that submission.
[26] However, I do accept that you were in a different car and only acted as a driver for some of the time. It is necessary for me to make some very modest concession for that and I shall do that by adopting a starting point for you on the kidnapping charge of two years, three months.
3 R v Boyle [2019] NZHC 1584; R v Betteridge [2019] NZHC 1480; and R v Green [2019] NZHC 1481.
[27] This brings me to the conspiracy to defeat justice charge. Attempting to stop the detection of homicide is serious offending. You were fully involved in that conspiracy until you opted out when the plan to dispose of the body was altered. But you were fully involved up to that point and you and Betteridge bought the petrol.
[28] But for the change of plan, the car would have been set alight, Mr Paterson’s body burnt in whole or in part, the police’s job made much more difficult, if not impossible, and Mr and Mrs Paterson and Ms Taitoko would have had to contend with that awful result on top of everything else.
[29] The starting point adopted for Betteridge on the conspiracy and mistreating charges was two years, six months. It was two years, three months for Green who had a slightly lesser role.
[30] If I were sentencing you on the conspiracy charge alone, I would adopt a starting point of two years, six months. As it is, I propose to uplift the starting point on the kidnapping charge by 12 months which brings the overall starting point to three years, three months’ imprisonment.
Aggravating and mitigating factors personal to you
[31] This brings me to the second stage which is to take account of matters personal to you.
[32] The only possible aggravating feature of your offending is the fact that it occurred whilst you were subject to release conditions. I do not propose to uplift for that.
[33]Equally, however, I decline to reduce your sentence on the ground of remorse.
[34] I have read the letter you wrote me, thank you and it is to your credit that you have written it, but actions will always speak louder than words and I decline to give you any credit for remorse. I cannot help but note, Mr Wickens, that although you tell me you are a father of two in this letter, the Corrections’ report is to the effect that you have very little, if anything, to do with your children.
[35] I shall, however, allow you a full 25 per cent reduction for your guilty pleas, these having been entered at the earliest opportunity. That means an end sentence for you of two years, five months’ imprisonment.
[36]Please stand.
(a)on the kidnapping charge, you are sentenced to two years, five months’ imprisonment; and
(b)on the charge of conspiring to defeat justice, you are sentenced to one year’s imprisonment.
[37] These sentences are to be served concurrently, which means your effective sentence is one of two years, five months’ imprisonment.
[38]Please stand down.
Peters J
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