Wickliffe v The Queen - [2019] NZHC 17

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…

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 The Queen

Details

AGLC: Wickliffe v The Queen [2019] NZHC 17
Case: [2019] NZHC 17
Decision Date: 21 January 2019

CaseChat Overview and Summary

The appellant, John Wickliffe, pleaded guilty to two charges of wounding with intent to cause grievous bodily harm and was sentenced to six years and nine months’ imprisonment. He now appeals both his convictions and his sentence. The appellant argues 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. The Court was required to decide whether the appellant received incorrect legal advice and if so, whether this gave rise to a miscarriage of justice.

The Court found that 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. The Court found that no miscarriage of justice arises because Mr Wickliffe already knew the consequences of being convicted of a second-strike offence. The Court held that 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. The Court concluded that the conviction appeal fails.

The Court noted that the appellant's counsel and the respondent 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. The Court held that the sentence appeal is allowed and 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.

Orders