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…

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: [2019] NZHC 347
Decision Date: 5 March 2019

CaseChat Overview and Summary

In the case of Wigglesworth v Police, Brent Wigglesworth appealed his sentence imposed by Judge C J Harding, which included 18 months’ intensive supervision, 60 hours’ community work, and a reparation payment of $406.31. The appeal was based on the argument that the sentence was manifestly excessive, considering the time Wigglesworth had already spent in custody prior to sentencing. Wigglesworth argued that the judge did not take into account the roughly four weeks he spent on remand, and therefore, credit should have been given for this time. The New Zealand Police did not oppose an extension for the appeal to be heard, and the court granted the extension.

The court needed to decide whether the judge's failure to take into account the time Wigglesworth spent on remand constituted an error that warranted a different sentence. The court also had to determine whether the sentence imposed was manifestly excessive, taking into account the circumstances of the case and Wigglesworth's criminal history.

The court accepted that the judge did not explicitly address the time Wigglesworth spent on remand when imposing the sentence, but noted that it would have been appropriate for the judge to do so. However, the court found that the final sentence imposed by the judge was within the available range, and that a sentence of imprisonment could not have been challenged as unreasonable given the damage caused, the deliberate nature of the offending, and Wigglesworth's recent criminal history. The court noted that the judge had taken a constructive approach in deciding that a community-based sentence was appropriate, particularly in terms of measures to help Wigglesworth tackle his alcohol problem. The imposition of a sentence which included an order to undertake 60 hours’ community work out of an available period of 400 hours was not, in the court's view, manifestly excessive.

In conclusion, the court dismissed the appeal. The judge's failure to take into account the time Wigglesworth spent on remand did not warrant a different sentence, and the sentence imposed was not manifestly excessive.

Orders