R v Wilson - [2008] NZCA 496

IN THE COURT OF APPEAL OF NEW ZEALAND
CA677/2008
[2008] NZCA 496
THE QUEEN
v
JOHN HUGH WILSON
Hearing:25 November 2008

Court:O'Regan, Hugh Williams and Harrison JJ
Counsel:E J Forster and A J Willis for Appellant

A Markham for Crown

Judgment:25 November 2008

ORAL JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Mr John Wilson appeals against a sentence of one year and nine months imprisonment imposed upon him in the District Court at Napier following his plea to a charge of setting a device that was likely to injure with reckless disregard for the safety of another: s 202(1) Crimes Act 1961.
[2]       Mr Wilson’s counsel, Mr Eric Forster, submits that the sentence is manifestly excessive and/or wrong in principle and says alternatively that the sentencing Judge failed to take proper account of Mr Wilson’s remorse.
Facts
[3]       The relevant facts are agreed. Police officers went to Mr Wilson’s home in Clive on 24 April 2008 to execute a search warrant under the Misuse of Drugs Act 1975. The property was fitted with surveillance cameras and in order to gain entry the police officers had to climb over a five-foot high corrugated iron fence which surrounded the rear. One of them, Detective Constable Lee, landed on a piece of wood from which about 50 four-inch nails protruded. Mr Wilson had planted the device which had been carefully camouflaged with sticks and leaves.
[4]       In Detective Constable Lee’s own words:
… Several nails ran up the sides of my foot including one which went up between my fourth and little toe. Only one nail went completely through my foot. This nail went in at the base of my big toe and ran up the bone before poking out the top. The second nail punctured my instep and thankfully I have high arches which prevented this nail from going right through. The third nail pierced the front of my heal and embedded itself.
…
The ambulance staff arrived approximately 20 minutes later and administered morphine and gas. This appeared to have no effect as the nail running up the bone of my big toe was being forced over by the swelling.
The subsequent cutting of the board to a more manageable size and the transporting to hospital also proved to be very challenging.
About two hours after the incident I was administered Ketamine in the resuscitation room of the Hastings Emergency Department and the board was finally removed.
Once the board was removed the pain stopped. What saved me from having to have an operation to clean the wounds was the fact the nail gun nails had been used and were at that stage not corroded.

[5] Similar devices were planted nearby. One was adjacent to the trap which caused the injury. Two others were found between the rear fence and a trailer. All were camouflaged.
[6] The effect of Mr Wilson’s crime is described by Detective Constable…

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 Wilson

Details

AGLC: R v Wilson [2008] NZCA 496
Case: [2008] NZCA 496
Decision Date: 25 November 2008

CaseChat Overview and Summary

In the appeal R v Wilson, the appellant, John Wilson, contests the severity of a one-year and nine-month imprisonment sentence imposed on him by the District Court at Napier following his plea to a charge of setting a device that was likely to injure with reckless disregard for the safety of another person under section 202(1) of the Crimes Act 1961. The Crown contends that the sentence was appropriate and within the court's discretion. The primary legal issues for the court were whether the sentence was manifestly excessive and whether the sentencing judge failed to consider Wilson's remorse in setting the sentence. The court examined the nature of the device and the injuries sustained by the police officer, as well as the circumstances surrounding the crime, including Wilson's status as a recidivist and his deliberate intent to cause harm. The Court of Appeal found that the sentence was neither manifestly excessive nor incorrect in principle, and that the sentencing judge appropriately considered Wilson's remorse by granting a reduction for his guilty plea. The court upheld the sentence, dismissing the appeal.

Orders