R v Wilson

[2015] NZHC 900

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-057-1570 [2015] NZHC 900

THE QUEEN

v

ROBERT JONATHAN WILSON

Hearing:	1 May 2015
Counsel:	J Shaw for Crown P Borich for Defendant
Judgment:	1 May 2015

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

P Borich, Auckland

R v WILSON [2015] NZHC 900 [1 May 2015]

Introduction

[1]      Robert Jonathan Wilson, you appear for sentence today on one charge of wounding with intent to do grievous bodily harm, one of assault with a weapon, and one of cultivating cannabis.  You pleaded guilty to all three of those offences.  You have already been given a first strike warning on the wounding charge.

[2]      The seriousness of offending of this type can be seen from the maximum penalties which are available to impose:

(a)       14 years imprisonment on the wounding charge

(b)      Five years imprisonment on the assault with a weapon charge; and

(c)       Seven years imprisonment on the cannabis charge.

[3]      The summary of  facts,  on  the basis  of which  you  pleaded  guilty to  the offences, reveals very disturbing conduct on your behalf.  The words in the summary of facts paint a picture of a man who was unable to control violent urges and who reacted excessively to actions of others.  That impression is supported by the CCTV footage that I saw this morning, and I will refer again to that later.

[4]      Even assuming that there was provocation of the type to which Mr Borich, on your behalf, has referred, both in the context of the altercation that occurred at the start of the events in issue and perhaps also in relation to what the two victims were doing when they were at the foot of the boat-ramp and when your car was parked at the  top,  the  reaction  that  you  showed  was  grossly  disproportionate  to  any provocation that was given.  The fact that you waited in your vehicle for some time before  driving  suggests  a  considered  action;  not  an  impulse  to  respond  to provocation.   That reflects the guilty plea you have entered to the charge of intentionally wounding someone with intent to do serious harm.

Facts

[5]      In broad outline, at about 4.45pm on 20 October 2014, you arrived at a boat- ramp situated at “The Elbow” on the Waikato River.  You were planning to launch your boat to go white-baiting.   Around the same time, Mr Troy Hughes and Mr David Ashton were returning to the ramp. You and the victims have adjoining white- baiting stands near Motutieke Island, on the river.

[6]      I  accept  that  an  altercation  occurred.    It  appears  to  have  been  about  a historical grievance involving the location of white-baiting stands.   There were occasions during that when a knife was produced.   You returned to your vehicle, reversed it up the boat-ramp and then drove around on the gravel in the carpark area apparently at some speed.

[7]      After your car had remained stationary for a while, you drove the vehicle down the ramp in the direction of Mr Hughes.   He was struck with your vehicle, pinning him between the boat-ramp retaining wall and the vehicle.  He was unable to escape.  His right leg was trapped.

[8]      Even  after  Mr  Hughes  had  been  put  in  that  position  you  continued  to accelerate pushing him against the retaining wall causing him to fall into the water. You drove towards Mr Ashton but he was able to avoid being hit by running into the water.

[9]      You  parked  your  vehicle.   You  got  out.   You  moved  again  towards  Mr Hughes.   You punched him to the head on six occasions with a closed fist, notwithstanding his obvious injuries at that stage.  You then left the scene in your car.

[10]     After your arrest police officers searched your home.  They were looking for firearms.  They located two interior doors.  Both were locked.  The officers forced the doors open.   Inside what appears to be a small scale cannabis cultivating area was located in which grow lamps, extractor fans, 33 cannabis plants at various stages of development and two sacks of dried cannabis plant were found.  I am aware that

you say this was for your personal use, but the amount of cannabis found does seem to exceed the presumption for supply in the cannabis legislation.

Personal circumstances

[11]     When you were interviewed you declined to make a formal statement.  When

Mr Hughes’ serious injuries were put to you, your reply was a chilling “good”.

[12]     While you have previously appeared before the Court on criminal charges, most of the convictions are spent or not relevant to this offending.  I do not intend to uplift the sentence that would otherwise be imposed by reference to them.

Analysis

[13]     The offending was, as I have already said, serious.  In one sense, it could be regarded as spontaneous.  Your actions demonstrate an inability to control yourself once you entered your car and were considering how to respond to what had happened.   I accept Mr Borich’s submission that while you did intend to cause serious harm (that being a part of the charge that you have pleaded guilty to), you did not intend to cause harm of the magnitude that Mr Hughes actually suffered.

[14]     Mr Hughes was taken to Middlemore Hospital by helicopter, in a critical condition.  Severe damage was caused to his leg.  He underwent major surgery.  He spent four days in intensive care and six weeks in the high dependency unit.  There remains a risk that his leg will need to be amputated.  He uses crutches and cannot work and does not know when he will be fit to return to work.  His wife has given up paid employment to care for him, thereby increasing the financial stress on the family.  In short, the physical, emotional, and financial consequences of your actions are huge.

[15]     Mr Wilson, you have heard the submissions that have been made by the lawyers and I do not intend to repeat them.  What I will do is to explain the sentence I intend to impose.

[16]     The offending against Mr Hughes is the most serious.  I intend to look at that in a global way.   It involved a number of aggravating factors; extreme violence, using a car to ram a person on two separate occasions that were proximate in time, serious harm was inflicted, not only the obvious physical component but also the emotional and financial harm to which I have referred.

[17]     So far as the other offending was concerned, I simply take that into account as part of the events that unravelled that day and in respect of which you appear for sentence.

[18]     The number of aggravating factors that relate to the violent conduct bring your conduct within Band 2 of a sentencing guideline judgment by which I am bound called R v Taueki.1    That results in my judgment with a starting point for sentence of between five and 10 years imprisonment.  Counsel have referred me to a number of comparator cases to assist in fixing a starting point.  None of them deal directly with a case such as this.  However, having regard to the guidance that they give I am satisfied that the starting point for which the Crown contends, one of six years imprisonment, is appropriate.

[19]     I now consider what mitigating factors exist to reduce that starting point. There are your guilty pleas.  They were entered at an early stage.  You are entitled to a credit of 25% for that.

[20]     I am not persuaded that I should reduce the sentence further.  If there were some provocation, the violence that followed was grossly disproportionate to it.  Nor am I persuaded that any credit for good character or for remorse is required.  As to the former, the existence of the prior convictions removes that.  As to the latter, I consider that a credit for the remorse you now express in a letter that you handed to me this morning is captured within the credit given for the guilty pleas.

[21]     Taking into  account  the credit  for the entry of  the guilty pleas,  the end sentence to reflect the violent offending would be one of four years and six months

imprisonment.

1      R v Taueki [2005] 3 NZLR 372 (CA).

[22]     I deal separately with the cultivation of cannabis as it is different in kind and time from the other incidents.   It is open to the finding that it was a small scale commercial operation, rather than for personal use.  I consider that it would normally attract a  starting point  of between  two  and  four  years imprisonment.2      For the purpose of this exercise, I shall choose a starting point of three years from which the credit of 25% will also apply.   On the cannabis charge, that would leave an end

sentence of two years three months imprisonment.

[23]     I am required to stand back and consider what penalty should be imposed to mark the totality of all the offending on which I am sentencing.3   I consider that an end  sentence  of  five  years  three  months  imprisonment  reflects  that  totality adequately.

Result

[24]   Mr Wilson, on the wounding charge you are sentenced to a term of imprisonment  of  four  years  and  six  months,  to  be  served  concurrently  with  a sentence of two years imprisonment on the assault charge.  On the cannabis charge you are sentenced to a term of imprisonment of nine months, which will be served cumulatively on the other two sentences.

[25]     I have not referred to reparation.  There is nothing to suggest you have an ability to pay.  None is ordered.

[26]     The  Crown  has  also  sought  an  order  disqualifying  you  from  holding  or obtaining a driver licence.   Given the likely term of imprisonment that you will serve, I do not consider such a sentence would be appropriate and I decline to make such an order.

[27]     There are two further charges which the Crown has indicated it wishes to withdraw.  They are charges of assault with a weapon and possession of a firearm. On those two charges, you are discharged.  A discharge has the effect of an acquittal

on those two charges.

2      R v Terewi [1993] 3 NZLR 62 (CA).

3      Sentencing Act 2002, s 85.

[28]     Stand down.

[29]     I thank counsel for their assistance and I acknowledge the presence of the

victim’s family and thank you for your attendance today.

P R Heath J