Wessels v Police - [2023] NZHC 909

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…

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 Wessels v Police

Details

AGLC: Wessels v Police [2023] NZHC 909
Case: [2023] NZHC 909
Decision Date: 24 April 2023

CaseChat Overview and Summary

Wessels appealed against his 25-month sentence for various criminal offences, arguing that it was manifestly excessive. The appeal was heard by Harland J in the High Court at Christchurch. The primary legal issues were whether the District Court erred by not exploring the option of a restorative justice conference and not considering a section 27 report, which could have led to a sentence of home detention. The court found that the District Court did not consider these options as required by law. The appeal was allowed, and the case was remitted back to the District Court for resentencing with these matters to be rectified.

The High Court noted that the District Court failed to refer the case to restorative justice despite Mr Wessels' guilty pleas and the victim's willingness to participate. This failure meant the court could not fulfil its obligation to consider any outcomes of restorative justice processes, as mandated by section 8(j) of the Sentencing Act. Additionally, a section 27 report, which could have provided more background information, was not provided to the defence in time for the sentencing hearing. The High Court concluded that without considering these factors, it could not determine if the sentence was manifestly excessive. Therefore, the sentence was remitted back to the District Court for resentencing, taking into account the restorative justice process and the section 27 report.

Orders