Wessels v Police
[2023] NZHC 909
•24 April 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-7
CRI-2023-409-8 [2023] NZHC 909
BETWEEN NICO WESSELS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 April 2023 Appearances:
C M Ruane for the Appellant
P Brand and L Fiennes for the Respondent
Judgment:
24 April 2023
JUDGMENT OF HARLAND J
Introduction
[1] On 16 January 2023, Mr Wessels was sentenced by Judge M Callaghan to 25 months’ imprisonment1 on the charges of burglary,2 accessing a computer system without authorisation (attempt),3 assault on a person in a family relationship,4 and contravening a protection order (x2).5 Mr Wessels appeals this sentence on the basis that it was manifestly excessive.
1 New Zealand Police v Wessels [2023] NZDC 499.
2 Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 252; maximum penalty 1 year imprisonment.
4 Crimes Act, s 194A; maximum penalty 2 years’ imprisonment.
5 Family Violence Act 2018, ss 90 and 112; maximum penalty 3 years’ imprisonment.
WESSELS v POLICE [2023] NZHC 909 [24 April 2023]
Principles on appeal
[2] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.7 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
[3] This appeal is slightly unusual because Mr Ruane submits that a restorative justice conference was not explored at all by the Court and a s 27 report had been requested by then defence counsel but had not been provided. These matters, coupled with the arithmetical error in the end calculation of the sentence by the Judge, mean that a sentence of home detention could possibly have been considered but was not. Mr Ruane submitted the appeal should therefore be allowed and remitted back to the District Court under s 251(c) of the Criminal Procedure Act 2011 for these matters to be rectified and attended to. This would essentially involve a resentencing process to be undertaken in due course.
[4] The respondent opposes the appeal and submits that the outcome cannot be said to be manifestly excessive. Rather, the end result is generous and within range. For these reasons, Mr Brand submitted the appeal should be dismissed.
Facts
[5] On 2 February 2022, Mr Wessels was served with a final protection order, issued by the District Court. The applicant for the order was the victim in the offending that followed. She was Mr Wessels’ ex-partner.
6 Criminal Procedure Act, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
First incident
[6] This incident gave rise to the charges of burglary, access to a computer system without authorisation and assault on a person in a family relationship.
[7] At around 11.30 am on 4 February 2022, Mr Wessels entered the victim’s address unannounced and without her consent. He refused to leave when asked. The victim left but returned shortly after. She found Mr Wessels was still inside.
[8] Mr Wessels took the victim’s phone and demanded she unlock it. The victim left the room but Mr Wessels followed her. He attempted to pry her fingers open in order to unlock the phone and access personal information in the Snapchat app. After kicking Mr Wessels away, the victim fled the house and went down the driveway. Mr Wessels followed and grabbed her face. He then threatened her before leaving the address.
[9] The victim sustained minor injuries, being a cut to her finger and bruising to a forearm.
Second incident.
[10] In mid-October 2022, while a protection order was in place, Mr Wessels contacted the victim on Snapchat, despite the victim telling him not to contact her unless it related to a damaged window at the address. He began abusing her and making personal accusations. This amounted to psychological abuse and was a breach of the protection order.
Third incident
[11] On 3 November 2022, while a protection order was in place and Mr Wessels was on bail, the victim was at her home with her young daughter. Mr Wessels accessed the property via a closed gate and approached the external door to the bedroom. He spoke to the victim through the window and became abusive, accusing her of being a police informant. He attempted to open a small window next to the door but was thwarted by a safety latch. This was a breach of the protection order.
District Court decision
[12] The Judge addressed elements of Mr Wessels’ pre-sentence report, including relevant aspects of his childhood leading to difficulties with relationships and alleged abuse. Mr Wessels had expressed that he was open to rehabilitative interventions, including contacting He Waka Tapu and undertaking a course during his remand in custody. He had also written a letter of apology.
[13] The Judge noted Mr Wessels’ previous convictions for breaching protection orders, assault and making threats. He referred to the victim impact statement which detailed the long-lasting effects of the relationship with Mr Wessels on the victim and her child.
[14] The Judge took the burglary as the lead offence and considered the breaking into a house with a person being present was aggravated by the fact a protection order was in place. A starting point of 21 months was adopted. A three month uplift was applied for the access to a computer system via an assault. The two later protection order breaches attracted a further eight month uplift.
[15] The Judge commented that some offending occurred while Mr Wessels was on bail but made no explicit uplift for this.
[16] The Judge considered he had reached a starting point of 34 months’ imprisonment. His Honour considered this appropriate from a totality perspective. This is incorrect as the original starting point and uplifts only amount to 32 months’ imprisonment.
[17] Discounts of 15 per cent and 10 per cent were provided for Mr Wessels’ delayed guilty plea and remorse respectively.
[18] Rounding down, this led to a sentence of 25 months’ imprisonment. Concurrent sentences were imposed for the other offending.
Discussion
[19] Submissions were filed by Ms Trinder, counsel for Mr Wessels in the District Court, and by Mr Ruane who appeared for Mr Wessels at the appeal hearing. I also received submissions from Mr Brand for the respondent and was provided with a letter from the complainant and an affidavit prepared by her both dated 21 March 2023. The complainant’s affidavit outlines the following:
(a) she was unaware Mr Wessels had expressed a desire to apologise and make amends;
(b) she was not informed of the option for restorative justice or the restorative justice process. She considers this took away her right to have her wishes heard and removed the possibility for an apology and amends to be made to her. She considers this has added to the emotional distress she has suffered and failing to present her with the option of restorative justice took away her choice;
(c) she raised concerns about inaccuracies in the summaries of facts;
(d) she wants Mr Wessels to be given the chance to make amends and rehabilitate in a way that is beneficial to them both and anyone else who has been impacted;
(e) she would like these actions to be taken through the restorative justice setting where she wishes to request support through both relationship counselling and individual counselling;
(f) she would like to do so with Mr Wessels serving a home detention or rehabilitative sentence at her address; and
(g) she does not want contact to be restricted or for she and Mr Wessels to be separated against their wishes as she does not believe this to be conducive to facilitating rehabilitation or reconciliation and, therefore, neither in hers or Mr Wessels best interests.
[20] The matters referred to in the complainant’s affidavit, which I infer she prepared and filed herself, are in conflict with the victim impact statements she made on 10 February 2022, 3 November 2022 and 4 January 2023. It appears from one of the statements (the most recent) that the complainant is studying psychology at university. I mention this because the complainant may be more alive to the issues engaged in offending of this kind and potentially what rehabilitative interventions may be possible.
[21] I observe however that the victim impact statement made by the complainant on 4 January 2023 was made very close in time to Mr Wessels sentencing. Even taking into account the reference in the affidavit to her not having been advised of his desire to apologise and make amends or being aware of restorative justice, the matters raised in it are of concern and would have indeed been of concern to the District Court Judge when sentencing.
[22] Although the appellant’s general submissions (those by Ms Wessels’ previous lawyer) took issue with the burglary charge being the lead charge, and although this issue was addressed by counsel for the respondent, it did not feature as being the main reason or indeed a reason at all advanced during the appeal hearing. Had I been required to determine this, I would have had no difficulty finding that the burglary charge was the lead charge. But, in any event, given the way the Judge dealt with the individual charges before taking into account mitigating matters, Mr Ruane correctly noted the outcome would have been the same.
[23] I focus instead on the appeal as it was argued at the hearing, which addressed the lack of restorative justice and the impact the absence of the s 27 report may have had on the end sentence.
Restorative justice
[24]Section 24A of the Sentencing Act (the Act) provides:
24A Adjournment for restorative justice process in certain cases
(1) This section applies if—
(a)an offender appears before the District Court at any time before sentencing; and
(b)the offender has pleaded guilty to the offence; and
(c)there are 1 or more victims of the offence; and
(d)no restorative justice process has previously occurred in relation to the offending; and
(e)the Registrar has informed the court that an appropriate restorative justice process can be accessed.
(2) The court must adjourn the proceedings to—
(a)enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and
(b)enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.
(emphasis added)
[25] Section 24A is expressed in mandatory terms. In this case, Mr Wessels pleaded guilty to the offences, there was a victim, there was no suggestion that a restorative justice process had previously occurred in relation to the offending, neither is it contended that an appropriate restorative justice process could not be accessed.
[26] Mr Ruane advised that he had not seen a transcript of the hearing at which the pleas were entered, but he had inspected the District Court files. I have been provided with a copy of the charging documents from the District Court file. They reveal that, in respect of all charges apart from the breach of protection order between 12 and 19 October 2022 (CRN 23009000373), Mr Wessels vacated his not guilty plea to each charge and entered guilty pleas. The file notes that he was convicted and remanded in custody to appear for sentence on 16 January 2023. A pre-sentence report with appendices was directed. In relation to the breach of protection order (CRN 23009000373), a guilty plea was entered to the charge on 16 January 2023, the date of sentencing. It appears there may have been a guilty plea entered prior on 13 January 2023 via AVL.
[27] It is clear from the charging document records that no consideration was given to s 24A of the Act.
[28] Mr Ruane observed that, in her sentencing submissions to the District Court Judge, Ms Trinder addressed the topic of remorse via restorative justice under paragraphs 14 to 16, but only referred to remorse. It is accepted that this was no more than an oversight because Mr Wessels has advised that he was willing to take part in a restorative justice process. It is also clear from the complainant’s position now that she was willing to take part in restorative justice as well.
[29] Mr Ruane also submitted that the failure to refer the matter to restorative justice meant that, in accordance with s 8(j) of the Sentencing Act, the Court could not fulfil its obligation to take into account any outcomes of restorative justice processes. Section 8(j) provides:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[30] Although accepting that any discount available to Mr Wessels, if there had been a restorative justice conference, could only have amounted to something in the order of five to 10 per cent, despite the generous deduction the Judge afforded for remorse, it is possible that this may have been increased had there been a conference which had a successful outcome.
[31] Mr Brand submitted that any deduction for restorative justice would be largely academic given the generous deduction the Judge allowed for remorse. Mr Brand also submitted that there is nothing to prevent restorative justice occurring now, but that submission ignores the mandatory nature of s 24A and the provisions of s 8 to which I have referred.
[32] While it is impossible to predict whether a restorative justice conference will be convened, section 24A makes it clear that referral must be made for it to at least be considered. As well, despite the nature of the charges in this case, s 24A(2)(a) provides that the option of restorative justice should also be put to a victim for them to consider whether they wish to participate in that process or not. The referral to restorative justice should have been directed when Mr Wessels pleaded guilty to the charges. This did not occur. The sentencing Judge did not note that this had not occurred. There is no evidence that it was drawn to his attention by counsel as it ought to have been.
[33] Given the complainant’s current view, as expressed in her recent affidavit, it would be unlikely that such a conference would not take place. I say unlikely because the current affidavit is a complete change of heart and somewhat at odds with the complainant’s expressed views in her victim impact statement of 4 January 2023. Given the dynamics of family violence, the restorative justice coordinators need to carefully assess the situation but, in my view, the complainant would have to be given the option to participate. This is particularly so given the provisions of s 8(f) of the Sentencing Act which requires the Court to take into account any information provided to it about the effect of the offending on the victim, although that information can also be provided in a victim impact statement.
[34] If a restorative justice process does not take place, then the questions for an appeal court are whether such a process would have been available and, if so, whether it would have made a difference.8 In this case, I am satisfied restorative justice would have likely been available given the matters referred to above. I return to the significance of this process failure on the outcome of the appeal after I have considered the matters relating to the s 27 report.
Section 27 report
[35] Mr Ruane was advised by Ms Trinder that a s 27 report was sought and she provided him with copies of an email trail between herself and the report writer. There appears to have been a miscommunication about when the s 27 report was due. However, the important point is that the report had not been provided to Ms Trinder
8 Moore v R [2019] NZCA 205 at [11].
by the time of the sentencing hearing. The report was purportedly forwarded to Ms Trinder after the sentencing date but Mr Ruane advised that the email did not in fact attach the report, which has only been made available to him recently.
[36] The appropriate course of action at the sentencing hearing would have been for counsel to apply for it to be adjourned. It is not clear whether this option was explained to Mr Wessels.
[37] Mr Brand’s point was that the presentence report covered detailed matters of background that were sufficient for the Judge to understand the matters that might be covered by a s 27 report. However, Mr Ruane’s point was that a s 27 report will normally provide a great deal more background and assistance to the Court which would add to the matters included in the presentence report.
[38] I agree with Mr Ruane. It is impossible to tell, without a proper consideration of the s 27 report, how much more information that report would have provided and what impact, if any, it would have had on the sentence. But, given that the starting point, if correctly calculated, would have amounted to 32 months’ imprisonment, any small deduction over and above that which had already been taken into account could well have brought the end sentence within the range where home detention could have been considered.
Result
[39] I am persuaded that the appeal should be allowed. Although the end sentence may only be adjusted in part, it is impossible to say that it is not manifestly excessive without the information referred to above being available.
[40] That being the case, I am persuaded that the appropriate course of action is to remit the sentence back to the sentencing Judge under s 251(2)(c) of the Criminal Procedure Act 2011. I direct that:
(a) there be a referral under s 24A of the Sentencing Act to a restorative justice coordinator to consider whether restorative justice can proceed;
(b) if a restorative justice conference does proceed, the outcome of that conference is to be provided to the sentencing Judge to consider whether a further mitigating deduction for it is warranted;
(c) any s 27 report on behalf of the defendant is to be filed in the District Court so that the sentencing Judge can consider whether any additional deduction is warranted; and
(d) after considering these matters, the sentencing Judge must decide whether to set the sentence imposed aside under s 251(2)(a) of the Criminal Procedure Act or vary the sentence as provided for under s 251(2)(b). At the very least, a variation will need to occur to reflect the error in the calculation of the starting point.
Harland J
Solicitors:
C M Ruane, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.