Wickliffe v Police - [2021] NZHC 1362

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-00016

[2021] NZHC 1362

IN THE MATTER OF An appeal against sentence

BETWEEN

JOHN WAYNE WICKLIFFE

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 31 May 2021

Appearances:

M James for Appellant

M J Lillico for Respondent

Judgment:

10 June 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 10 June 2021 at 2 pm Registrar/Deputy Registrar
Date:

Counsel: M James, Hamilton Solicitors: Crown Law, Wellington

WICKLIFFE v THE NEW ZEALAND POLICE [2021] NZHC 1362 [10 June 2021]

[1] On 19 February 2019, Judge T R Ingram in the District Court at Waihi sentenced Mr Wickliffe to six years and six months’ imprisonment on the following charges:1

(a)two charges of wounding with intent to cause grievous bodily harm arising out of a serious assault by Mr Wickliffe against his uncle and his uncle’s friend on 3 October 2017 (“the wounding charges”);2

(b)two charges of failing to comply with reporting obligations after being registered on the child sex offender register,3 and two charges of breaching an extended supervision order (“the breach of ESO and reporting charges”);4 and

(c)one charge of theft under $500 (“the shoplifting charge”).5

[2] In sentencing Mr Wickliffe, Judge Ingram considered the two wounding charges, which arose out of the same incident, could not be separated.6 His Honour therefore set a starting point of eight years’ imprisonment to reflect the seriousness of both offences.7 The aggravating factors included the extremity of the violence; offending while subject to a court order; and the degree of harm suffered by both victims, while at the same time recognising a degree of harm is inherent in the charge.8 The Judge also pointed to Mr Wickliffe’s substantial record of alcohol related offending.9

[3] As the wounding charges were second strike offences and had to be served without parole, Judge Ingram applied a 25 per cent discount for Mr Wickliffe’s guilty

1      Police v Wickliffe [2019] NZDC 2934 [Second sentencing notes]. Judge Ingram originally sentenced Mr Wickliffe in 2018. In Wickliffe v R [2019] NZHC 17, Katz J remitted the sentence to the District Court for re-sentencing. Judge Ingram did so in the judgment under appeal.
2      Crimes Act 1961, s 188(1). Maximum penalty 14 years’ imprisonment.
3      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39(1). Maximum penalty one year’s imprisonment and/or a fine not exceeding $2,000.
4      Parole Act 2002, s 107T. Maximum penalty two years’ imprisonment.
5      Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
6      R v Wickliffe [2018] NZDC 1004 [First sentencing notes] at [14]. Continued in Second sentencing notes at [6] and [14].
7 First sentencing notes at [14].
8 At [13].
9 At [13].

pleas, being the sole adjustment for personal factors identified. His Honour convicted and sentenced Mr Wickliffe to imprisonment for a period of six years, directing that Mr Wickliffe serve the full term of that…

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 Wickliffe v Police

Details

AGLC: Wickliffe v Police [2021] NZHC 1362
Case: [2021] NZHC 1362
Decision Date: 10 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Mr John Wayne Wickliffe appealed against his sentence. The District Court at Waihi had sentenced him to six years and six months’ imprisonment, following convictions on various charges including wounding with intent, failing to comply with reporting obligations after being registered on the child sex offender register, and breaching an extended supervision order. The appeal sought to challenge the sentence on the basis that a cultural report pursuant to s 27 of the Sentencing Act 2002 was not prepared and presented to the court at the time of sentencing. Mr Wickliffe argued that such a report would have led to further discounts for personal factors and thus, resulted in a manifestly excessive sentence.

The High Court granted leave to appeal out of time and considered the appropriate discount for personal factors and how the resulting sentence should be structured. The court found that the s 27 report provided a reasonably credible picture of Mr Wickliffe's background, including his exposure to alcohol from a young age, significant alcohol problems of his parents, sexual abuse, and other trauma, as well as his rehabilitative efforts. The court agreed with the submissions that a 10 per cent discount for alcohol dependence issues arising from his childhood and a five per cent discount for rehabilitative efforts he has been making were appropriate. The court further held that these discounts should be applied separately to both the wounding charges and the breaches of the extended supervision order and reporting charges.

Consequently, the appeal was allowed and Mr Wickliffe’s sentence was modified. On the wounding charges, his end sentence was reduced to four years and nine months’ imprisonment to be served without parole. On the breaches of the extended supervision order and reporting charges, his end sentence was reduced to five months’ imprisonment, cumulative on his sentence in respect of the wounding charges. The one-month sentence in respect of the shoplifting charge remained unchanged.

Orders