Wigglesworth v Police

[2019] NZHC 347

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-999

[2019] NZHC 347

BETWEEN

BRENT WIGGLESWORTH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 March 2019
Appearances:	C Harold for Appellant E Collis for Respondent
Judgment:	5 March 2019

ORAL JUDGMENT OF TOOGOOD J

WIGGLESWORTH v NEW ZEALAND POLICE [2019] NZHC 347 [5 March 2019]

Introduction

[1]                 Brent Wigglesworth pleaded guilty to one charge of theft (under $500)1 and one charge of unlawfully getting into a ship.2

[2]                 On 29 August 2018, Judge  C  J  Harding  sentenced  Mr Wigglesworth  to  18 months’ intensive supervision and 60 hours’ community work.3 He was also ordered to pay $406.31 in reparation, by instalments.

[3]                 Mr Wigglesworth appeals his sentence on the ground that it was manifestly excessive, having regard to the one month that he had spent in custody prior to sentence.

Factual background

[4]                 On 2 February 2018, Mr Wigglesworth paddled his kayak out to a yacht moored at Pilot Bay, Mount Maunganui. He boarded the boat and spent the night there. The owner of the boat apparently saw him do that and reported the matter to Police. When questioned by Police, Mr Wigglesworth said he thought the yacht belonged to his friend. That was plainly a lie. $206.31 of the ordered reparation related to damage Mr Wigglesworth did to a hatch on the yacht.

[5]                 On 8 February 2018, Mr Wigglesworth stole two surfboards, collectively worth $200; that amount constitutes the remainder of the reparation ordered by the Judge.

Judge Harding’s decision

[6]                 Judge Harding recognised that Mr Wigglesworth has a long-standing alcohol problem. However, Mr Wigglesworth had been in custody serving sentences of imprisonment on other matters. That naturally limited his drinking and left him in a position where he was able to express some insight into his offending.

1      Crimes Act 1961, ss 219 and 223(d); the maximum penalty is three months’ imprisonment.

2      Section 226(2); the maximum penalty is two years’ imprisonment.

3      Police v Wigglesworth [2018] NZDC 20548.

[7]                 The Judge noted that the pre-sentence report recommended intensive supervision and community work, and he adopted the recommendation. The sentence of intensive supervision imposed by the Judge included the following conditions:

(a)attendance at a suitable drug and alcohol programme to the satisfaction of a probation officer;

(b)attendance at a counselling or treatment programme to the satisfaction of a probation officer; and

(c)attendance at an assessment for a departmental programme and, if accepted, completion of that programme to the satisfaction of a probation officer.

[8]                 The reparation was ordered to be paid at a rate of $25 per week, with the first instalment due within 28 days of the sentencing.

[9]                 Mr Wigglesworth has a history of minor offending, including some offences of dishonesty, but that history was not referred to by the Judge and it appears he did not give it any weight.

The appeal

[10]              Mr Wigglesworth filed his appeal out of time and he now seeks a retrospective extension.4 It seems Mr Wigglesworth did not know about the time limit for filing an appeal. However, the Police do not oppose an extension being granted and, as there  is no prejudice to the respondent, I grant the extension accordingly.

[11]              Mr Wigglesworth is now represented by Ms Harold, who submits that the Judge made an error in that he failed to take into account, in imposing sentence, the time of roughly four weeks Mr Wigglesworth had spent on remand in custody prior to being sentenced. Ms Harold submits, therefore, that although a sentence of imprisonment was not imposed, credit should nevertheless have been given for the

4      Criminal Procedure Act 2011, s 248(4).

time spent on remand;5 ordinarily, full credit would be given, as if the time spent on remand was spent serving the sentence.6

[12]              Ms Harold submits that the four weeks in custody on remand is the equivalent of two months’ imprisonment because an offender is automatically released on parole after serving half of a short-term prison sentence.7 Given the level of offending and the time Mr Wigglesworth spent in custody, therefore, Ms Harold submits that an appropriate end sentence was one of intensive supervision and an order to pay reparation and says that the community work aspect of Judge Harding’s sentence should be quashed.

[13]              For the respondent, Ms Collis accepts that Judge Harding did not specifically apply a discount for time served in custody, and acknowledges that I must infer from that that the Judge did not take that factor into account. But counsel submits that the end sentence, although the Judge may have erred, is not manifestly excessive. The proposition is that a sentence of imprisonment could well have been imposed, given Mr Wigglesworth’s recent criminal history which includes having been sentenced to short terms of imprisonment for other offending. Since 2017, he was convicted of being unlawfully in a building, wilful trespass (for which he served two months’ imprisonment), assaulting the Police and drink driving (for which he received six months’ imprisonment) and two charges of theft (of under $500). Ms Collis has referred to several cases where sentences of imprisonment were imposed for unlawfully getting into a vehicle,8 but acknowledges that some of those would properly be characterised as more serious than this offending.

Decision

[14]              I  accept  that  Judge  Harding  did  not  say  he  had  addressed  the  time    Mr Wigglesworth spent remanded in custody before sentencing. I am conscious that District Court Judges dealing with busy lists often have only a limited amount of time

5      Te Aho v R [2013] NZCA 47 at [17]; Ropiha v R [2013] NZCA 60 at [26].

6      Longman v Police [2017] NZHC 2928 at [9].

7      Parole Act 2002, s 86(1).

8      Kara-Newcombe v Police [2018] NZHC 25; McDonald v Police [2012] NZHC 1408; Rota v Police HC Gisborne CRl-2009-416-20, 14 September 2009; Prasad v Police HC Napier AP50/1, 13 December 2001; Mack v Police HC Dunedin CRI-2007-012-4365, 4 October 2007.

to express their reasons for the imposition of the sentence, but it would have been appropriate for the Judge to expressly take it into account. The appeal must be allowed, however, only if I am satisfied that a different sentence should be imposed as a result of the error.9

[15]              In my view, the final sentence the Judge imposed was within the available range. A sentence of imprisonment could not have been challenged as unreasonable, given the damage that was  caused;  the  deliberate  nature  of  the  offending  and  Mr Wigglesworth’s recent criminal history. Instead, the Judge took a constructive approach, as recommended by the probation officer, in deciding that a community- based sentence was appropriate. I refer particularly to the measures he adopted to help Mr Wigglesworth tackle his alcohol problem.

[16]              The imposition of a sentence of community work formed a necessary part of the sentence, bearing in mind the need to hold Mr Wigglesworth accountable for his offending and to promote in him a sense of responsibility.10 Even taking into account Ms Harold’s point about the time Mr Wigglesworth spent in custody on remand, a sentence which included an order to undertake 60 hours’ community work out of an available period of 400 hours was not, in my view, manifestly excessive.

Result

[17]In the circumstances, I dismiss the appeal.

………………………….

Toogood J

9      Criminal Procedure Act 2011, s 250(2).

10     Sentencing Act 2002, s 7(1)(a) and (b).