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 Lee as follows:

The pain was excruciating but given the circumstances I needed to remain calm and quiet until entry into the dwelling was completed and occupants secured.

…

I was off work for the following 10 days, many of which I was on crutches.  I returned to work after that and resumed light duties for the next couple of weeks.

I have nerve damage to my right big toe as a result of this incident and it still feels like a large blister wrapping the outside and end of my big toe but is actually just numb.  I understand that the feeling will return to this toe in time. The numb part is shrinking very slowly and even after five months it has still not made any real difference.

[7]       At the time Mr Wilson was serving a sentence of nine months home detention following his conviction on 15 November 2007 on a range of drug charges including cultivating cannabis.

[8]       Mr Wilson was 37 years of age at the time of sentence.

District Court

[9]       The sentencing Judge, Judge Rea, identified three aggravating factors: first, Mr Wilson’s commission of the offence while serving a sentence of home detention; second, the deliberate nature of offending which was designed to cause serious harm; and, third, the nature and extent of the injuries suffered by the police officer.

[10]     The maximum sentence for this offence is five years imprisonment.  The Judge sentenced Mr Wilson as if he had pleaded guilty to a charge of injuring with reckless disregard for the safety of another (he had already discharged Mr Wilson on a count of wounding with reckless disregard).  In the event the Judge adopted as appropriate a starting point of two years three months to two years six months imprisonment, well below the Crown’s submission of four years.  He allowed a deduction for Mr Wilson’s plea of guilty, reducing the end sentence to one of one year nine months imprisonment.

Decision

[11]     Mr Forster advances Mr Wilson’s appeal on two grounds.  First, he submits the sentence is manifestly excessive by reference to earlier authorities in this Court: R v Cave CA121/99, 20 July 1999; R v Heta CA163/00 27 September 2000; R v Coombs [2008] NZCA 329. We agree with Ms Annabel Markham for the Crown that the factual differences between Mr Wilson’s offending and the offences considered by the Court in those cases are such that they provide little assistance in determining this appeal. Mr Forster accepts that there is no tariff or guideline judgment for this type of crime. He accepts also that sentencing in this area is particularly fact dependent.

[12]     In our judgment it is unnecessary to draw analogies with related crimes or offending.  The offence of setting a trap with reckless disregard for the safety of others has a maximum penalty of five years imprisonment.  It is directed towards the nature of the device itself and the likelihood of causing injury.  This trap itself was particularly lethal.  Anybody entering the property from the rear would necessarily land with a high degree of force after dropping from a five-foot fence.  It was carefully and deliberately constructed and concealed for the purpose of causing serious injury and was not designed for the lesser purpose of deterrence or warning.  As the Judge noted, the intended consequence of serious injury materialised here, and that factor is of itself aggravating on the starting point. 

[13]     It was open to the Judge to set a starting point for the culpability of the offending alone of at least 50% of the maximum sentence.  A seriously aggravating factor was Mr Wilson’s commission of the crime while on home detention.  On its own this circumstance would have justified a further increase in the starting point of six months.  It follows, in our view, that the starting point adopted by the Judge was, if anything, generous to Mr Wilson.

[14]     Second, Mr Forster submits that Judge Rea failed to take into account Mr Wilson’s remorse.  He accepts the Judge made a reduction for the guilty plea but says he ‘did not state that a reduction was made for the remorse’.  It is obvious that the emotion of remorse is generally inherent within a plea of guilty.  It does not normally justify a discrete allowance as a stand-alone factor.  The Judge, as Ms Markham points out, allowed a discount of 22-32%, depending on which starting point is accepted.  In our judgment this allowance could never be criticised as insufficient.  And, given that the focus is on the ultimate sentence, we are not persuaded that a term of one year nine months imprisonment was manifestly excessive.

[15]     Accordingly, Mr Wilson’s appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington