Wickliffe v Police - [2014] NZHC 3000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000101 [2014] NZHC 3000

MAYNARD MONTROE WICKLIFFE

v

POLICE & DEPARTMENT OF CORRECTIONS

Hearing: 27 November 2014

Counsel:

AND Garrett for Appellant
K B Bell for Respondent

Judgment:

28 November 2014

JUDGMENT OF WHATA J

[1] Mr Wickliffe was convicted on a number of charges including possession of methamphetamine utensils and possession of methamphetamine. He was sentenced to 18 months imprisonment. He appeals against sentence on the basis that it was manifestly excessive and that in particular on the charge of possession of utensils a cumulative eight months sentence in addition to the sentencing for the other offending infringed the totality principle. A substitute sentence of six months imprisonment is sought in relation to that charge.

Background

[2] In a reasonably detailed sentence Judge S J O’Driscoll canvasses the essential
background to the offending, the principles adopted by him and the other factors relevant to his sentence. He describes the relevant charges in this way:1

1 Police v Wickliffe DC Christchurch CRI 2014-009-004945, 19 September 2014.

WICKLIFFE v POLICE & DEPARTMENT OF CORRECTIONS [2014] NZHC 3000 [28 November 2014]

[5] Charges that you appear before me on today are driving while disqualified and providing false information to the police. The driving while disqualified charge is made in its aggravated form. The first set of offending relates to 29 May. There is then a charge of breach in community work on
9 June, and in saying that I note that while there is only the one charge before me you managed to carry out one hour of the sentence of community work. There are then other charges relating to 18 June, possession of a utensil for smoking methamphetamine, possession of methamphetamine and a further charge of driving while disqualified. There is also a charge of breaching release conditions.

[3] The Judge then notes aggravating factors including the fact that there are two sets of charges relating to driving while disqualified and the appellant’s previous convictions for driving while disqualified, the last conviction being as recent as April
2014. He also noted that the appellant has a number of convictions involving drugs including the supply and possession of methamphetamine in 2006 and another charge of possession of methamphetamine in 2013. Appearance for breach of release conditions were also noted.

[4] The Judge then essays relevant mitigating factors:

[9] In terms of the mitigating factors there is your guilty plea. I give you credit for that. While I have already mentioned the letter that you have written you have heard what I have said about that. Actions speak louder than words. I hope that whenever you are released from prison Mr Wickliffe you are able to put into action the sentiments that you have expressed in your letter. That you are remorseful and will not get into trouble again. Drugs only ever get people into trouble, and clearly you have been sentenced to imprisonment in the past for drugs. You have continued to…

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.

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Details

Case: [2014] NZHC 3000
Decision Date: 28 November 2014

CaseChat Overview and Summary

Maynard Montroe Wickliffe appealed against his sentence on the basis that it was manifestly excessive, particularly for the charge of possession of methamphetamine utensils. Wickliffe was sentenced to 18 months imprisonment, which he argued was disproportionate to the relatively minor nature of the offences. The appeal focused on the eight-month sentence for possession of utensils, which Wickliffe claimed should not be cumulative with the other sentences. The Court of Appeal was required to determine whether there was a material error in the sentence imposed and whether a different sentence should be imposed. This involved assessing whether the sentence was manifestly excessive, wrong in principle, or flawed on its face. The appeal hinged on whether the totality principle was properly considered in imposing the cumulative sentence.

The High Court found that the Judge had considered the totality principle when imposing the sentences and had appropriately dealt with the offending on a cumulative basis. The Court examined the nature and seriousness of the offences, which included multiple counts of driving while disqualified, possession of methamphetamine and its utensils, and breaches of community work and release conditions. The Court concluded that the cumulative sentence of 18 months was appropriate given the nature of the offences and Wickliffe's history of reoffending. The Court noted that the sentence for the possession of utensils was not manifestly excessive in isolation and that the Judge's cumulative approach was justified. The Court rejected Wickliffe's argument that a lesser sentence should have been imposed and dismissed the appeal.

The High Court's judgment affirmed the trial Judge's approach to sentencing, noting that the totality principle was appropriately applied. The Court found no basis for reducing the sentence and upheld the 18-month imprisonment term. The appeal was dismissed, and the original sentence was confirmed.

Orders