Wannell v Police

[2025] NZHC 528

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2025-418-1

[2025] NZHC 528

BETWEEN

JOSHUA LUKE WANNELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 March 2025
Appearances:	A J McKenzie for Appellant P J Brand for Respondent
Judgment:	14 March 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 14 March 2025 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

WANNELL v NEW ZEALAND POLICE [2025] NZHC 528 [14 March 2025]

[1]    Joshua Wannell pleaded guilty in the Westport District Court to a representative charge of burglary,1 and a charge of  common  assault.2  He  was  sentenced  by  Judge Duggan to six months’ home detention.3 He appeals that sentence on the grounds it was manifestly excessive.

Facts

[2]The offending was summarised in the Judge’s sentencing notes as follows:

[3]As I was outlining, before 26 January this year you went to the [first] victim’s address, 2.30 am in the morning, you broke a glass pane, you got inside. The victim was woken up, you punched her in the face, there was an argument and you left. Two days later you went back round to the same address, the victim was not there but you upturned furniture and then sent text messages to her saying that you did not need a key. Fortunately, the victim, who I understand is your ex-partner, did not receive any visible injuries.

[4]In terms of the other violence, that happened on 27 August this year. You saw the [second victim] at the bottle store near here. He was in the driver’s seat of his car; you pulled up in your car and you went up to the car that he was sitting in. You pulled the door open, you lent in and you punched him in the head, the summary says five to six times. He drove away. He had a sore face and a blood nose.

[3]                  Mr Wannell’s first victim was his ex-partner. She expressed elevated feelings of anxiety and fears of being unsafe as a result of the offending. Her property was damaged and she has suffered the loss of a stolen suitcase containing photos, letters, treasures, kids artwork, all of which were of sentimental value to her.

District Court sentencing

[4]                  The sentencing Judge took the representative burglary charge as the lead offence and set a starting point of 12 months’ imprisonment. The Judge remarked that she treated that offending as an instance of family violence and noted there  were  two separate acts, one involving physical violence to the victim and the other psychological violence. In regard to the latter act of burglary, a two-month uplift was applied to recognise how that conduct aggravated the earlier burglary that had

1      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

2      Section 196; maximum penalty one year imprisonment.

3      Police v Wannell [2024] NZDC 32112.

occurred two days before. A further uplift of two months was applied in recognition of the separate assault and the fact Mr Wannell was on bail at the time of that offending.

[5]                  To the adjusted starting point of 16 months’ imprisonment, a 20 per cent discount was applied for the guilty plea and a further 10 per cent discount provided to mark time spent on bail.   However, that was offset by the addition of a month     (6.3 per cent) for the personal aggravating feature of Mr Wannell’s four previous convictions for family violence.   The end sentence was rounded down  to one of    12 months’ imprisonment. That sentence was commuted to one of six months home detention. In doing so the Judge remarked that she was not satisfied that community detention, a sentence that had been urged upon her by Mr Wannell’s counsel, would meet “the aims and objectives of the Sentencing Act 2002”.

Approach to appeal

[6]                  Mr Wannell has a right to appeal his sentence which may be allowed only if this Court is satisfied there has been an error in the imposition of the original sentence and that a different sentence should be imposed.4 A Court will not intervene where the sentence imposed is within the range that can be properly be justified by accepted sentencing principles.5

Submissions

Appellant’s submissions

[7]                  Mr McKenzie, who presented the argument on behalf of Mr Wannell, did not contest the end notional sentence of 12 months’ imprisonment. His argument was that the Judge had failed to consider other alternatives to a full-time custodial sentence being commuted to one of home detention. Mr McKenzie submitted the Judge gave inadequate consideration to a sentence of community detention and community work and/or supervision and failed to adequately take into account the aims and objectives of the Sentencing Act in declining to adopt that course.

4      Criminal Procedure Act 2011, ss 244, 250(2) and (3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[8]                  Mr McKenzie further submitted that insufficient weight had been given to the absence in Mr Wannell’s criminal record of any previous convictions for burglary, which he argued should have been taken into account when considering the need for deterrence and the potential scope for a less restrictive outcome.

The Crown’s position

[9]                  Mr Brand, on behalf of the Crown, submits the ultimate sentence of six months’ home detention was well within the sentencing discretion of the Judge and may even have been lenient in the circumstances.

Discussion

[10]              I do not consider there is scope to argue the sentence of six months’ home detention amounts to a manifestly excessive sentence or was otherwise inappropriate having regard to the nature of Mr Wannell’s offending. The representative count of burglary involved the unlawful entry into a dwelling place which is recognised as a statutory aggravating factor,6 and involved the victim being physically attacked in her bed with a blow to her head. That family violence was aggravated by a second unlawful entry two days later which was vindictive and designed to cause the victim considerable stress. The uplift of two months for the entirely separate assault on a different victim which involved five to six punches to the head was modest.

[11]              The Judge did not articulate the reasons for converting the prison sentence to home detention. Implicitly, she must have considered that despite the aggravating features  of  the  violent  offending,  the  sentence  was   sufficient   to   denounce  Mr Wannell’s conduct, hold him accountable for the harm he had caused and deter him from further offending. In declining to impose a sentence of community detention, the Judge observed that she did not consider such an outcome would satisfy the aims and objectives of the Sentencing Act 2002.

[12]              Mr McKenzie was critical of the Judge not having further articulated her rejection of such a sentence. However, I consider that critique is misplaced. It is not

6      Sentencing Act 2002, s 9(1)(b).

contested the 12-month sentence of imprisonment was otherwise appropriate. The only question that remained for the Judge was whether a less restrictive outcome would have been appropriate in the circumstances, having regard to the hierarchy of sentences. Clearly, the Judge considered a lesser sentence of home detention could be substituted but that a community-based sentence was not appropriate.

[13]              I am unable to perceive any error in the approach taken by the sentencing Judge to the exercise of her discretion when assessing the issue of the appropriate type of sentence particularly when regard is had to the circumstances of Mr Wannell’s offending and his history of family violence which includes breaches of a protection order and assault. As I observed to Mr McKenzie in the course of hearing the appeal, it is always open to a sentencing Judge to impose a merciful sentence, but there is nothing in either the circumstance of this offending or Mr Wannell’s personal background that would support such a course. The approach taken by the Judge to the sentencing exercise before her was entirely orthodox.

[14]              In so far as Mr McKenzie’s further submission is concerned, that insufficient weight was given to the absence of any previous convictions for burglary, I consider counsel has conflated the absence of an aggravating feature with a mitigating factor. As observed, Mr Wannell has previous convictions for family violence which were properly the subject of an uplift. This tends to demonstrate that his current offending is part of a continuing pattern of criminal conduct towards persons with whom he is in a family relationship. The absence of burglary having previously been associated with his past family violence does not demonstrate either prior good behaviour or good character and does not warrant any reduction in the sentence.

Result

[15]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
Andrew McKenzie, Barrister, Christchurch