R v Wilson - [2015] NZHC 1603

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-070-000461 [2015] NZHC 1603

THE QUEEN

v

ANDREW TIMOTHY WILSON

Hearing: 9 July 2015

Appearances:

G C Hollister-Jones for Crown
W Nabney for Defendant

Judgment:

9 July 2015

SENTENCING NOTES OF GILBERT J

R v WILSON [2015] NZHC 1603 [9 July 2015]

Introduction

[1] Mr Wilson, you appear for sentence having pleaded guilty to the following charges involving two victims:

Victim 1

(a) Two charges of sexual violation by unlawful sexual connection.

(b)One representative charge of sexual violation by unlawful sexual connection. This relates to offending over a period of nearly six years from January 2005 to October 2010.

These offences each carry a maximum penalty of 20 years’ imprisonment.1

Victim 2

(c) One charge of indecent assault on a child under 12 years. The

maximum penalty for this offence is ten years’ imprisonment.2

(d)One charge of attempted abduction for the purposes of sexual connection. The maximum penalty for this offence is seven years’ imprisonment.3

[2] You initially appeared for sentence in the Tauranga District Court on

18 December 2014. Judge Harding declined jurisdiction on the grounds that you should be considered for a sentence of preventive detention. The requisite reports from appropriate health assessors have now been prepared assessing the likelihood of you committing further qualifying sexual or violent offences and you have had a full opportunity to prepare submissions on sentence. I acknowledge the thorough and careful submissions that have been presented by the Crown and by your counsel,
Mr Nabney.

1        Crimes Act 1961, ss 128 and 128B
2        Crimes Act 1961, s 132(3).
3        Crimes Act 1961, s 208(b), 72(1).

[3] As you will appreciate, the outcome for you today will inevitably be either a lengthy determinate sentence of imprisonment or a sentence of preventive detention. Either way, a minimum period of imprisonment will be required.

[4] I will now summarise the process I intend to follow in reaching this determination. I will start by setting out the facts of the current offending. I will then summarise the harm that your offending has caused with particular reference to the victim impact statement that has been prepared on behalf of Victim 1. I will review your previous convictions and the facts giving rise to those. I will summarise the findings of the two clinical psychologists who have prepared reports for the purposes of sentencing today. I will discuss the pre-sentence report, the purposes and principles of sentencing that I consider are most relevant to your situation. I will then summarise the submissions for the Crown and for the defence. Following this, I will go through the exercise of determining an appropriate sentence were I to impose a determinate sentence. Finally, I will consider whether a sentence of preventive detention should be imposed. Having reached my conclusion on this, I will ask you to stand while I sentence you.…

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 [2015] NZHC 1603
Case: [2015] NZHC 1603
Decision Date: 9 July 2015

CaseChat Overview and Summary

The case before the Court is an appeal by the defendant, Andrew Timothy Wilson, against his conviction and sentence for multiple sexual offences involving two victims. The appeal focuses on the application and interpretation of the law concerning preventive detention and the adequacy of the evidence to support the imposition of such a sentence. The Crown, represented by G C Hollister-Jones, argues for the affirmation of the sentence, while the defendant, represented by W Nabney, contends that the sentence of preventive detention was inappropriate and excessive. The Court, presided over by Justice M A Gilbert, examines the legal framework surrounding preventive detention, the risk assessment reports, and the proportionality of the sentence in light of the defendant’s history of sexual offending and the potential for rehabilitation.

The central legal issue in this appeal revolves around the criteria and justification for imposing a sentence of preventive detention under the Sentencing Act 2002. The Court must determine whether the evidence supports the finding that the defendant poses a significant and ongoing risk of committing serious sexual or violent offences if released into the community. This involves a thorough review of the psychologist’s reports, the defendant’s history of sexual offending, and the likelihood of rehabilitation through treatment programs.

Justice M A Gilbert begins by setting out the detailed facts of the case, which involve multiple instances of sexual abuse against two young victims over several years. The Court then examines the psychologist’s reports, which highlight the defendant’s high risk of re-offending and the failure of previous treatment efforts. The analysis of the statutory factors under section 87(4) of the Sentencing Act reveals a clear pattern of serious offending, significant harm caused to the victims and the community, and a lack of effective efforts by the defendant to address the causes of his offending. The Court also considers the defendant’s alcohol abuse, which exacerbates his risk of re-offending.

In reaching the decision, the Court underscores the principle that preventive detention is not punitive but is intended to protect the community from individuals who pose a significant and ongoing risk. The Court finds that the evidence supports the imposition of preventive detention, given the defendant’s extensive history of sexual offending against very young and vulnerable victims, his continued deviant interests as evidenced by materials found in his prison cell, and the failure of previous treatment efforts to prevent further offending. The Court concludes that a lengthy determinate sentence would not provide adequate protection for the community, and that preventive detention is necessary to manage the defendant’s risk of re-offending.

In its final orders, the Court affirms the sentence of preventive detention for the offences against Victim 1 and a term of imprisonment for the offences against Victim 2, to be served concurrently. The Court also withdraws certain charges by leave. The decision emphasizes the importance of protecting the community and ensuring that individuals who pose a significant risk of re-offending are subject to appropriate and effective measures to mitigate that risk.

Orders