The Queen v Rikki Aaron Charles Wilson

[2001] NZCA 445

PUBLICATION OF ANY NAMES OR PARTICULARS LIKELY TO LEAD TO COMPLAINANT’S IDENTIFICATION PROHIBITED: SEE CRIMINAL JUSTICE ACT 1985, s139

IN THE COURT OF APPEAL OF NEW ZEALAND  CA15/01

THE QUEEN

V

RIKKI AARON CHARLES WILSON

Hearing:  21 May 2001

Coram:  Keith J

Goddard J Chambers J

Appearances:  P Mabey QC for Appellant M Woolford for Respondent

Judgment:  29 May 2001

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

A kidnapping and a serious assault

[1]    One Friday night in June 1999, the appellant drove down from Auckland to Taihape to see his former partner, Catherine (not her real name). He had asked to see her and she had agreed to a meeting. As the appellant reached Taihape he saw Catherine and a female friend driving in a car. The appellant cut in front of them, forcing them to stop on the side of the road. The appellant and Catherine got out of their respective cars. The appellant was immediately aggressive and abusive.

Catherine told the appellant that she had to take her friend and the children who were in the car home. Eventually, the appellant agreed to that. They left in convoy.

[2]    When they got near the friend’s home, the appellant again swerved in front of Catherine’s car, forcing her to jam on her brakes. As Catherine was opening the car door, the appellant came up to her and, while she was sitting in the driver’s seat, punched and kicked her repeatedly. He then required her and the children to get into his car. Immediately they were in his car, he punched her again, twice on the head with his closed right fist.

[3]    The appellant then drove to Catherine’s brother’s home. Catherine ran inside and locked the door. But that did not keep the appellant at bay. He kicked the door  in and broke the lock. When someone tried to telephone the police, he pulled the phone cord from the wall and then snapped the cord so as to make the telephone unusable. The appellant insisted that Catherine go with him. She pleaded with him. She was bleeding and in a great deal of pain. He dragged her from the house by her jersey. Out of fear, she eventually agreed to go peacefully with him.

[4]    The appellant then took Catherine to his sister’s place in Palmerston North. They stayed the night there. Catherine’s face was badly swollen and bruised. Her arms, body, and legs were also bruised.

[5]    The next morning they drove to Napier and called at a friend’s house. The friend suggested to the appellant that he get medical help for Catherine. He did not.

[6]    On the Saturday night they booked into a hotel in Napier. Catherine was still in a great deal of pain.

[7]    On the Sunday morning they travelled to Tauranga and later booked into a motel there. During that night, the police came to the door to discuss some  burglaries with the appellant. They called back later and took the appellant away with them. They then discovered Catherine and took her to the Tauranga hospital. She arrived there about 5.30 am on the Monday morning. She spent 4 days in hospital. She had a severely broken jaw that required surgery. There was also  serious bruising to her face and eye socket and extensive severe bruising to her limbs and many parts of her body.

[8]    The appellant was charged with kidnapping (Crimes Act 1961, s209(1)(a)), causing grievous bodily harm (s188(1)), and sexual violation by rape (s128(1)(a)). The jury found him guilty on the first two counts and not guilty on the third. The  trial judge sentenced the appellant to 6½ years’ imprisonment on the kidnapping charge and 5 years’ imprisonment on the grievous bodily harm charge, the sentences to be concurrent.

[9]The appellant appeals against his sentence.

Issues on the appeal

[10]   The appellant does not quibble with the 5 year term on the grievous bodily harm charge. What he says is that 5 years’ imprisonment should have been the overall penalty. The sentencing judge, in fixing an overall sentence of 6½ years’ imprisonment, imposed a term that was manifestly excessive.

[11]   Mr Mabey QC, for the appellant, pinpointed what he said were two errors in the sentencing judge’s approach. The first was that she erroneously concluded, and proceeded on an assumption, that the appellant had kept Catherine ‘a virtual prisoner in a state of intense pain without medical attention over 3 nights and 2 days’.

[12]   The second error, he said, was that the judge had wrongly taken into account lack of remorse as an aggravating feature.

[13]We shall deal with each of those points in turn.

The length of confinement

[14]   Mr Mabey submitted that the sentencing judge, in fixing the kidnapping sentence, proceeded on the basis that the confinement lasted from the Friday evening to the Monday morning when the police discovered her. The reality was, Mr Mabey submitted, the confinement was ‘brief’. He submitted to us, as he had to the sentencing judge, that, after the initial kidnapping, Catherine ‘remained voluntarily’ with the appellant over the weekend.

[15]   Mr Mabey accepted that where a fact relevant to sentence but not affecting conviction is in dispute between different witnesses, the sentencer is entitled to reach

[16]   What precluded the judge from finding that the confinement persisted until the Monday was, Mr Mabey said, a question asked by the jury during the course of their deliberations. The question was in these terms:

‘If [Catherine] went into the car at [Catherine’s brother’s] house under duress, but later changed her mind, is that then still kidnapping?’

[17]   That question indicated, Mr Mabey said, that the jury considered the confinement came to an end shortly after she got into the car at her brother’s place and certainly by the time they arrived at the appellant’s sister’s place in Palmerston North. Mr Mabey referred also to the evidence that at the sister’s place Catherine  and the appellant smoked cannabis together and slept in the same bed. The  following night, in the Napier motel, Catherine and the appellant again used drugs and slept in the same bed. Sexual intercourse took place on the Sunday morning. That was the subject of a sexual violation charge on which the appellant was acquitted.

[18]   We attach no significance to the jury’s question. It may well be that only one juror was toying with the idea that Catherine might have ‘changed her mind’. We would only be speculating if we tried to discern from that question what conclusion the jury came to as to the length of the confinement. In all probability they did not come to a conclusion on that matter because it was not relevant to their task. The judge was fully entitled to reach her own conclusion as to how long the confinement was. She did not, in the end, form a definite view on the length of the confinement because that was unnecessary for sentencing purposes. What she did note as an aggravating feature was that ‘for a lengthy period following the abduction from [her brother’s] home [Catherine] was with the [appellant] in a seriously injured state without medical assistance.’ She went on to note that it was difficult ‘to accept the proposition that [Catherine] was a person able to exercise free will in that situation’.

[19]   With those comments we agree. It was clearly open to the judge on the evidence before her to conclude that the confinement was lengthy and indeed that

Catherine was kept, as the Crown submitted, ‘a virtual prisoner in a state of intense pain without medical attention over 3 nights and 2 days’. We do not accept, therefore, Mr Mabey’s first point on the appeal.

[20]    Mr Mabey also faintly raised a submission that the judge was wrong to have rejected a defence submission that the violence was ‘impulsive’. There is nothing in that point. The judge was clearly entitled on the evidence to reach a conclusion that the appellant’s actions were not impulsive but rather were premeditated. The judge was clearly able to find that the appellant was on the Friday night ‘intent on achieving his own ends’ and was ‘prepared to use violence to achieve his ends’.

A lack of remorse

[21]   In paras [19] to [26] of her sentencing notes, the judge summarised what she saw as ‘the aggravating features’. Paragraph [26] reads as follows:

‘While [the appellant] accepts the jury’s verdicts, and acknowledges that he needs assistance, it is not apparent that he demonstrates remorse for what occurred. He continues to deny that he broke [Catherine’s] jaw.’

[22]   On that basis, Mr Mabey submitted that the judge wrongly considered lack of remorse to be an aggravating feature. We accept that a lack of remorse is not an aggravating feature: see Hall’s Sentencing, para. I.8.1. We do not read  that paragraph of the judge’s sentencing notes, when placed in context, as indicating that lack of remorse was an aggravating feature justifying a longer sentence than would otherwise have been appropriate. Rather, we think she was simply making the point that the appellant did not demonstrate remorse, with the consequence that no discount could be allowed on account of remorse. She was in effect rebutting a defence submission earlier recorded in her judgment to the effect that some mitigation should be allowed because the appellant ‘accepted’ he had done wrong and ‘acknowledged’ that he had to take steps to break out of a cycle of violence: see para [13] of the sentencing notes, dealing with Mr Mabey’s submissions. The judge was clearly dubious about the appellant’s genuineness in that regard, and concluded, at para [28] of her sentencing notes, that there were ‘no mitigating factors that warrant a reduction’.

Result

[23]We do not accept either of Mr Mabey’s main points of appeal.

[24]   We have also stood back and looked at the sentence in the round. In our  view, a sentence of 6½ years’ imprisonment correctly reflected the gravity of the total offending in this case. Mr Mabey had submitted to the sentencing judge that  the grievous bodily harm charge should be regarded as the more serious.  He repeated that submission to us. We do not think it matters particularly which is seen as the more serious crime. Clearly this was a case for concurrent sentences and the important thing is the total sentence, however it is made up. Even if Mr Mabey were correct that the grievous bodily harm charge was the more serious, we consider that a sentence of 6½ years’ imprisonment could well have been justified on that charge.

[25]We dismiss the appeal.

Solicitors:

Crown Solicitor, Auckland for the Respondent