Wickliffe v The Queen
[2019] NZHC 17
•21 January 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-000079
[2019] NZHC 17
BETWEEN JOHN WAYNE WICKLIFFE
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 December 2018 Counsel:
R Barnsdale for appellant M Lillico for respondent
Judgment:
21 January 2019
JUDGMENT OF KATZ J
This judgment was delivered by me on 21 January 2019 at 4.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law Office, Wellington Counsel: R Barnsdale, Barrister, Auckland
WICKLIFFE v R [2019] NZHC 17 [21 January 2019]
Introduction
[1] John Wickliffe pleaded guilty to two charges of wounding with intent to cause grievous bodily harm. As Mr Wickliffe had already received a first-strike warning under the three-strikes regime, these two convictions (together) constituted his second strike. He was sentenced by Judge T R Ingram on 22 January 2018 to six years and nine months’ imprisonment.
[2] Mr Wickliffe now appeals his convictions and his sentence. He says that his then counsel, Peter Attwood, did not tell him that as a consequence of the three-strikes regime, he would be required to serve the full term of any sentence imposed. If he had known that, he says, he would have defended the charges.
[3]The key issues raised by the conviction appeal are:
(a)Did Mr Wickliffe receive erroneous advice from Mr Attwood as to the impact of the three-strikes regime on his parole eligibility?
(b)If he did, has this given rise to a miscarriage of justice?
[4] Mr Wickliffe’s primary focus was on the conviction appeal, rather than his sentence appeal. It was common ground, however, that the Judge erred in not formally ordering that Mr Wickliffe serve the full term of his sentence without parole, as required by s 86C(4) of the Sentencing Act 2002 (“Act”).
Factual Background
[5] On 28 October 2015, Mr Wickliffe was convicted of two charges of indecently assaulting a female aged between 12 and 16. In accordance with the requirements of the Act, he was warned by the Judge of the consequences of committing a second-strike offence. In particular, he was warned that if he received a sentence of imprisonment for another “serious violent offence” he would “serve that sentence without parole or early release”. He was also given a written notice outlining this, which listed the serious violent offences.
[6] The two wounding with intent charges that are the subject of the current appeal arose from an altercation that occurred two years later, on 3 October 2017. The Crown summary of facts describes the offending as follows.
[7] Mr Wickliffe’s uncle, Barry Wickliffe (“Barry”) and Barry’s friend Paul Kemp were drinking at the home of a mutual friend. Mr Wickliffe was also present. Mr Wickliffe became “amped up” and left the address only to appear a short time later by climbing over a neighbour’s fence. Mr Wickliffe was told to leave the address, as he was no longer welcome. Mr Wickliffe became enraged at this and began assaulting Mr Kemp who was asleep on an outdoor seat at the time. Mr Wickliffe punched Mr Kemp to the head, with both fists.
[8] Barry intervened, and he and Mr Wickliffe ended up on the road side at the front of the house. Barry was very quickly overpowered and was punched three or four times to the head and eyes by Mr Wickliffe. The force used split Barry’s right eyeball. After getting up from the ground, Barry retreated to his own home.
[9] Around this time, Mr Kemp came out on to the road and Mr Wickliffe struck him on the side of the face. Mr Kemp was rendered unconscious, but Mr Wickliffe continued to kick and stamp him on the head and body, repeatedly.
[10] At one point Mr Wickliffe walked away from Mr Kemp, only to return and continue kicking him. Mr Wickliffe also grabbed Mr Kemp’s head and banged it against the ground before wrapping a sweatshirt around Mr Kemp’s neck and throwing him against a nearby fence.
[11] Mr Kemp’s left eye socket was fractured in several places and he sustained a broken bone near his left ear along with bruising and swelling. Barry required surgery to his right eyeball and permanently lost vision in that eye.
[12] In a subsequent letter to his uncle Barry, Mr Wickcliffe acknowledged that he “went too far”.
Approach to conviction appeal following guilty plea
[13] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.1 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.2 A trial, for the purposes of the definition of a “miscarriage of justice”, includes a proceeding in which the appellant pleaded guilty.3
[14] The Court of Appeal in R v Le Page held that it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.4 An appellant must show that a miscarriage of justice will result if his conviction is not overturned.5 Where the appellant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot generally be impugned.6
[15] There are four broad categories of exceptional circumstances in which an appeal against conviction may succeed following a guilty plea. The first three were summarised by the Court of Appeal in R v Le Page as follows:7
(a)where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where on the admitted facts the appellant could not in law have been convicted of the offence charged; and
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law.
1 Criminal Procedure Act 2011, s 232(2)(c).
2 Section 232(4).
3 Section 232(5).
4 R v Le Page [2005] 2 NZLR 845 at [16].
5 At [16].
6 At [16].
7 At [17]–[19].
[16]In R v Merrilees, the Court of Appeal added a fourth category, namely:8
(d)where trial counsel errs in the advice given as to the non-availability of certain defences or potential outcomes.
[17] The Court made it clear in Merrilees that it would only be in very rare circumstances that conviction appeals would be allowed following a guilty plea:9
It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can by impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[18] The Court in Merrilees did not explicitly refer to advice relating to sentence as being the type of counsel error that might give rise to a successful conviction appeal. However, in Su’a v R, the Court of Appeal considered that it is implicit in the reference to “outcomes” in the fourth category from Merrilees that a miscarriage of justice in a conviction appeal following a guilty plea could include “erroneous advice regarding sentencing outcomes”.10
[19] The issue was also recently considered in Tuira v R.11 In that case the Court of Appeal referred to its earlier decision of T (CA662/2012) v R, which stated that, while a disappointing sentencing outcome will not by itself give rise to a miscarriage of justice, incorrect advice about the consequences or outcomes of a guilty plea may, in combination with other circumstances, give rise to one.12
[20] In R v Saik13 the Court of Appeal (England and Wales) considered the circumstances in which advice about outcomes may give rise to a miscarriage of justice. In that case the appellant had sought to vacate his guilty pleas on the basis
8 R v Merrilees [2009] NZCA 59 at [34].
9 At [35].
10 Su’a v R [2017] NZCA 439 at [11].
11 Tuira v R [2018] NZCA 43.
12 At [80]; citing T (CA662/2012) v R [2013] NZCA 550 at [25]-[32].].
13 R v Saik [2004] EWCA Crim 2936, as cited in Tuira, above n 11 at [81].
that he had been given erroneous advice as to the likely length of sentence and as to the security of his matrimonial home in subsequent confiscation proceedings. The Court noted that defence counsel’s advice as to sentence had been “optimistic” and, in respect of the confiscation proceedings, had misapprehended the basis on which those proceedings would occur. The Court held that for an appeal against conviction to succeed on the basis that the guilty plea was entered after erroneous advice, the facts must be so strong as to show that the plea of guilty was not a true acknowledgement of guilt - the advice must go to the heart of the plea. Further, the Court found it “very difficult to see how erroneous advice as to the length of sentence could ever go to the heart of a plea – except perhaps where the maximum penalty for the offence is understated – for the decision on length of sentence lies with the judge or the Court of Appeal”.14 The Court found that Mr Saik knew that there was no certainty as to the length of sentence the judge would impose upon him. He also knew there was no certainty what would happen to his house following confiscation proceedings. The appeal against conviction was accordingly dismissed.
Was Mr Wickliffe given incorrect legal advice regarding the impact of the three- strikes regime on his sentence?
The three-strikes regime
[21] The Sentencing Act was amended in 2010 to create a three-stage system of increasing sentencing consequences for repeat serious violent offenders, commonly known as the “three-strikes” regime. There are 40 qualifying “serious violence” offences, comprising all major violent and sexual offences with a maximum penalty of seven years or greater imprisonment.
[22] A first warning is issued when an offender aged 18 or over at the time of a qualifying offence, and who does not have any previous warnings, is convicted of that offence (a “first strike”). Such an offender is warned orally and in writing that if they commit another serious violent offence they will be required to serve the full term of any sentence imposed, without parole.15
14 At [58].
15 Sentencing Act 2002, s 86B.
[23] If that offender is subsequently convicted of another qualifying offence (a “second strike”) they must be ordered to serve their sentence in full. They also receive a further warning (orally and in writing) informing them that if they commit another serious violence offence, then the court must impose the maximum penalty available for that offence. Such a sentence is to be served without parole, unless the court considers that would be manifestly unjust.16
[24] On conviction of a third qualifying offence (a “third strike”), the court must impose the maximum penalty for the offence, to be served without parole, unless the court considers that would be manifestly unjust.17
The evidence of Mr Wickliffe and Mr Attwood
[25] Both Mr Wickliffe and Mr Attwood swore affidavits for the purposes of the appeal and were cross-examined on those affidavits.
[26] Mr Wickliffe entered pleas of not guilty to the two charges of wounding with intent to injure when he first appeared in the District Court. He was represented by a duty solicitor at the time. Mr Wickliffe says that he told the duty solicitor that he thought he had a defence of self-defence. They discussed the fact that it was a second- strike offence and that as a result, if Mr Wickliffe were to plead guilty, he would have to serve the whole of the sentence imposed by the Court, without parole. Mr Wickliffe acknowledged in cross-examination that, even prior to meeting with the duty solicitor, he knew the consequences of committing a second-strike offence, as a result of having previously received a first-strike warning.
[27]Mr Attwood was subsequently assigned as Mr Wickliffe’s lawyer.
Mr Wickliffe deposed that:
I told [Mr Attwood] what the Duty Solicitor has told me, that I would have to serve the whole sentence imposed. Attwood said no, I would only have to serve one third of my sentence.
I was confused, but remember him telling me that I would have serve part of any sentence which I receive. He told me that sentences in the vicinity of
16 Section 86C.
17 Section 86D.
eight years imprisonment or more could be likely with some deductions for an early guilty plea.
It was after this conversation that I changed my plea to one of guilty.
[28] Mr Attwood firmly denied having told Mr Wickliffe that he would only have to serve one third of his sentence. Mr Attwood’s evidence was that his discussions with Mr Wickliffe around the three-strikes regime centred on the question of a third strike, as this was Mr Wickliffe’s driving concern. He stated that: “I do not have any file note detailing advice about the effect of a second strike and do not remember giving any”.
[29] The reason for failing to discuss the implications of the offence being a second- strike offence, Mr Attwood said, was that Mr Wickliffe’s key concern was that he might receive two further strike warnings (both a second-strike warning and a third-strike warning) given that there were two wounding with intent charges. Obviously, that would have had very serious implications for Mr Wickliffe, as if one of the offences was a third-strike offence he would face the maximum term of 14 years’ imprisonment, without parole.
[30] Mr Attwood’s evidence was that his advice was responsive to Mr Wickliffe’s concerns. Mr Wickliffe already knew that he was affected by the three-strikes regime, and that he was “in line for at least a second strike, if not a third”.
[31] Mr Attwood said that he advised Mr Wickliffe of the Hessell decision and was “quite clear” that he told Mr Wickliffe that he would receive a sentence of imprisonment, with a discount of as much as 25 per cent providing his pleas did not attract a third strike. (They did not, as the convictions were entered on the same day). Mr Attwood deposed that he would have also advised Mr Wickliffe that:
(a)a third strike attracts the full term of imprisonment applicable to a charge unless such a sentence is manifestly unjust;
(b)any strike offence prior to the receipt of an actual “third strike” does
not attract the maximum penalty dictated by the charge and that the
ordinary Sentencing Act and case law considerations would apply in coming to a final sentence; and
(c)accruing a strike offence takes a person one step closer to reaching the actual third-strike position.
[32] Mr Attwood believes he would have given this advice because in his practice this is “standard operating procedure” – “a bit like the giving of Hessell advice”. He said that he has “absolutely no doubt” that he would have given this advice.
[33] On 31 October 2017, Mr Attwood wrote to Mr Wickliffe mentioning the applicability of the three-strikes regime. He did not, however, expressly refer to the sentencing implications of the offence(s) being a second strike.
[34] Mr Attwood firmly denied that he had told Mr Wickliffe that he would only have to serve one-third of his sentence. He said that he would never tell a client that. Mr Attwood said that he did not give any advice to Mr Wickliffe about parole eligibility before Mr Wickliffe entered his guilty pleas, and he does not have a file note recording any such advice.
[35] I found Mr Attwood to be a credible witness. He freely acknowledged that he had failed to give any advice on the sentencing implications of a second strike, and explained why that was so (namely, because Mr Wickliffe’s focus was on whether one of the two offences might be a third-strike offence). He strenuously denied, however, that he had told Mr Wickliffe that he would only have to serve one third of his sentence. I accept his evidence on that issue, and reject that of Mr Wickliffe. Mr Attwood is an experienced criminal lawyer. He was a forthright witness, who made appropriate concessions. Even if the three-strikes regime had not applied, no assurances could properly have been given to Mr Wickliffe that he would only have to serve one third of his sentence. Ultimately any decisions regarding parole are in the hands of the Parole Board, as Mr Attwood would have been well aware.
[36] I am therefore satisfied that Mr Attwood did not give Mr Wickliffe incorrect advice regarding the likely length of his prison sentence, or his eligibility for parole.
He did not, however, expressly advise Mr Wickliffe on the sentencing implications of the fact that he would be sentenced for a second-strike offence. This fell short of best practice. Even if Mr Attwood believed that Mr Wickliffe already knew this information, he should have re-iterated it and satisfied himself that Mr Wickliffe correctly understood the position.
[37] In summary, Mr Attwood did not give incorrect advice to Mr Wickliffe regarding possible sentencing outcomes. Rather, his “error” was one of omission, in that he failed to expressly advise Mr Wickliffe that he would be required to serve any sentence imposed without parole, because of the three strikes regime. It appears that the reason for this omission was, in essence, that Mr Attwood believed that Mr Wickliffe was already aware of this, and was primarily concerned about the possibility that one of the charges might be a third-strike offence.
[38] I therefore now turn to consider whether Mr Attwood’s failure to expressly advise Mr Wickliffe that he would be required to serve any sentence imposed without parole may have given rise to a miscarriage of justice.
Miscarriage of justice
[39] As outlined above, Mr Wickliffe had previously received both an oral and a written first-strike warning. He acknowledged that, as a result of those warnings, he knew the consequences of committing a second-strike offence prior to his first appearance in the District Court on the wounding with intent charges. At his first appearance, he met with the duty solicitor who reiterated that he would be required to serve any sentence imposed without parole.
[40] Mr Wickliffe therefore knew the sentencing consequences of being convicted of a second-strike offence, prior to meeting with Mr Attwood. His argument on appeal, in essence, was that he then became confused, as a result of Mr Attwood contradicting the earlier advice he had received, and telling him that he would only need to serve one-third of any prison sentence imposed. I have found, however, that Mr Attwood did not give him such advice.
[41] Obviously, it would have been best practice for Mr Attwood to have formally advised Mr Wickliffe regarding the consequences of a second-strike conviction, even if he believed he was already aware of that information. In the circumstances, however, no miscarriage of justice arises because Mr Wickliffe already knew the consequences.
[42] Mr Wickliffe may well have been reluctant to plead guilty, but he was not induced to do so as a result of incorrect legal advice on the part of counsel. Rather, the evidence suggests that his motivation was most likely that he had been told that his proposed defence of self-defence was hopeless, and that by pleading guilty he would receive a significant sentencing discount, which he did (25 per cent).
[43] There is no suggestion that when Mr Wickliffe entered his guilty pleas he did so under some misapprehension about the nature of the charges or the availability of any defence, such that his pleas cannot be seen as a genuine acknowledgement of guilt. Mr Wickliffe signed a file note that stated, “I understand that if it was self-defence the level of injury goes beyond what is ‘reasonable’” and that “[a]ny defence I could use is further reduced by the fact that I have acknowledged being very drunk that night which has reduced my memory”. Mr Wickliffe also apologised to his uncle for the assault after the event, stating “I went too far with my actions”.
[44] The Crown case appears to have been a strong one and Mr Attwood’s assessment of the defence of self-defence as hopeless was reasonable in all the circumstances. An independent eye witness saw Mr Wickliffe “beating up” Mr Kemp while Mr Kemp was lying on the ground and struggling to sit up. The witness added “I then saw the male that was standing over this male kick him in [the] head and I heard a loud crack”. Any defence of self-defence in respect of Barry would likely fail for reasons of proportionality. Mr Wickliffe quickly overwhelmed Barry (who gave a statement that “he was on to me too fast”) and assaulted him to the extent that he split Barry’s eyeball. Mr Wickliffe himself had no visible injuries. The evidence does not suggest that Mr Wickliffe was using force against Barry to defend himself. Rather, he seems to have wanted some retribution for a perceived slight.
[45] In conclusion, I am not satisfied that Mr Attwood’s failure to expressly advise Mr Wickliffe as to the sentencing implications of being convicted of a second-strike offence has given rise to a miscarriage of justice. The conviction appeal accordingly fails.
Sentence appeal
[46] Mr Barnsdale’s focus on behalf of Mr Wickliffe was on the conviction appeal, rather than the sentence appeal. It was common ground, however, that Judge Ingram erred in not formally ordering that Mr Wickliffe serve the full term of his sentence without parole, as required by s 86C(4) of the Act.
[47] By way of background, Mr Wickliffe entered his guilty pleas on 13 November 2017 and Judge Ingram gave him a second-strike warning on that date. Both the Crown and defence then filed written sentencing submissions. The defence submissions noted that the convictions had incurred a warning under the three-strikes regime, but that as both convictions were entered on the same day, they together amounted to Mr Wickliffe’s second strike.
[48] Sentencing took place on 22 January 2018. It appears from the Judge’s Sentencing Notes that he may have overlooked that Mr Wickliffe was subject to the three strikes regime. He did not formally order that Mr Wickliffe serve the full term of his sentence without parole. Further, he made passing reference to Mr Wickliffe needing to address his alcohol problem “in your time in prison or on release by the Parole Board”.
[49] In addition, the manner in which the sentence is structured also tends to indicate that the Judge may not have turned his mind to the consequences of the three-strikes regime. In particular, a starting point of eight years’ imprisonment was taken for the grievous bodily harm offending. That was then uplifted by one year in respect of charges of shoplifting and breach of supervision which Mr Wickliffe was being sentenced for on the same date, which the Judge (appropriately) described as “a completely different type of offence”. A 25 per cent guilty plea discount brought the overall end sentence to six years and nine months. Although this is a fairly orthodox sentencing approach, the result is, in effect, that Mr Wickliffe will not only have to
serve his sentence for the grievous bodily harm offending without parole, but also his sentence for shoplifting/breach of supervision. It is possible that, if the Judge had turned his mind to the impact of the three strikes regime, he may have structured his sentence differently (although he is not required to do so).
[50] Counsel agreed that the appropriate course in all the circumstances is to allow the sentence appeal and remit the matter for re-sentencing in the District Court. Amongst other things, this will enable the appropriate order under s 86C(4) to be made. Counsel raised several other matters relevant to sentencing, including the implications (if any) of the Court of Appeal’s decision in Barnes v R.18 That decision was delivered subsequent to Mr Wickliffe’s sentencing, and deals with adjustment of sentences in light of the parole consequences of a second-strike conviction. Given that I propose to remit the matter to the District Court for re-sentencing, it is appropriate that any such issues be addressed in the District Court, rather than in the context of this appeal.
[51] For the reasons outlined, I am satisfied for the purposes of s 250(2) of the Criminal Procedure Act that there has been a relevant error in the sentence imposed. Pursuant to s 251(2)(c) the appropriate course is to remit the sentence to the District Court and direct that Court to set aside the sentence and impose another sentence that it considers appropriate.
Result
[52]The conviction appeal is dismissed.
[53]The sentence appeal is allowed.
[54] The sentence is remitted to the District Court. The District Court is directed to set aside the sentence and impose another sentence that it considers appropriate.
Katz J
18 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.