Wiki v The Queen

[2021] NZHC 2631

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-102

[2021] NZHC 2631

BETWEEN

WILLIAM JOHNATHON WIKI

Appellant

AND

THE QUEEN

Respondent

Hearing:

4 October 2021

Appearances:

S Gilbert for Appellant

A McConachy for Respondent

Judgment:

4 October 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 4 October 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

WIKI v R [2021] NZHC 2631 [4 October 2021]

[1]    Mr Wiki pleaded guilty in the District Court to charges of being in unlawful possession of a sawn-off shotgun and four rounds of ammunition. He also pleaded guilty to charges of being in possession of .2 grams of methamphetamine and a methamphetamine pipe, as well as two charges of breaching his prison release conditions.

[2]    On 27 April 2021, Judge A J S Snell sentenced Mr Wiki to 21 months imprisonment on the charges relating to the firearm and ammunition.1 He imposed short concurrent terms of imprisonment on the remaining charges. The Judge directed that Mr Wiki was to serve the sentences concurrently with a sentence of six years nine months imprisonment he was already serving.

[3]    Mr Wiki appeals against sentence. He contends the Judge erred in imposing concurrent sentences and failed to take into account totality considerations.

The Judge’s decision

[4]    Mr Wiki received a sentence of six years imprisonment on 28 August 2017 on a variety of drug-related charges. After being released on parole he received a cumulative sentence of nine months imprisonment on 30 April 2020 after he assaulted a police officer and then escaped from custody. He was again released on parole later in 2020. The present offending occurred in October 2020 whilst Mr Wiki was still subject to prison release conditions.

[5]    By the time Mr Wiki was sentenced on the present charges he had been recalled to prison to continue serving the original sentence of six years nine months imprisonment. The Judge was aware of this. He elected to impose a concurrent sentence on the present charges for the following reasons:2

[18]      I am aware that the defendant has been re-called on his drug sentence and is appearing before the Parole Board for a hearing in relation to that re- call. While this offending is all distinct and separate offending, I consider that the sentence that I impose today should be one that is concurrent with that other sentence, leaving him eligible for parole at an earlier date than if I made it cumulative. I consider that that is the only fair way to move forward in these circumstances because in and of its own right, this sentence is a stern one, but

1      Police v Wiki [2021] NZDC 7944.

2      Police v Wiki, above n 1.

it takes into account the factual circumstances and the defendant’s position, particularly as regards his involvement with drugs, being on release conditions and now having firearms with drugs and breach of his release conditions all tied up in one.

[19]      In the circumstances, the final sentence that will be imposed upon him is one of 21 months on each of the firearms-based offences. There will be two months on the possession of the methamphetamine pipe, one month on the possession of the methamphetamine and there will be two months on the breach of prison release conditions on each. All of that served concurrently, within itself, and concurrent to any other sentence that you are serving at the present time.

Leave to appeal

[6]    Mr Wiki filed his application for appeal 75 days out of time. Ms Gilbert explains on his behalf that Mr Wiki did not become aware of the legal effect of a concurrent sentence of imprisonment until several months after it was imposed. He then immediately filed his notice of appeal. In those circumstances I grant Mr Wiki leave to appeal out of time.

Decision

Was the Judge mistaken in imposing a concurrent sentence?

[7]    The passage set out above demonstrates that the Judge imposed a concurrent sentence to enable Mr Wiki to be eligible for parole earlier than would be the case if he imposed a cumulative sentence. Counsel suggest the Judge erred in doing so. They point out that the imposition of a concurrent sentence meant Mr Wiki would not begin serving the sentence until 27 April 2021, being the day it was imposed.3 He would need to serve ten and a half months of the sentence before being eligible for automatic release in February 2022 after serving one-half of the sentence.4 The fact that Mr Wiki had been recalled to prison to continue serving the original sentence before he was sentenced on the present charges also means he will get no credit for any time spent in custody before he was sentenced.

3      Parole Act 2002, s 76(1).

4      Section 86(1).

[8]    Both counsel point out that, had the Judge imposed a cumulative sentence on the present charges, Mr Wiki would have been eligible for parole much earlier than is now the case. The imposition of a cumulative sentence results in the creation of notional single sentence.5 As a result, he would be eligible to apply for parole after serving one-third of that sentence. As matters currently stand Mr Wiki is eligible for release on the present charges in March 2022. If the Judge had imposed a cumulative sentence Mr Wiki would have been eligible to apply for parole on all charges no later than June 2020.6 This means the Judge did not achieve the outcome he intended by imposing a concurrent sentence.

[9]    I accept that the imposition of a concurrent sentence means Mr Wiki will become eligible for parole later than would have been the case if he had received a cumulative sentence on the present charges. However, I do not consider an experienced Judge such as Judge Snell would have misunderstood the effect of the sentence he was imposing.

[10]   The Judge would have known that the effect of a cumulative sentence was to create a notional single sentence of eight years six months imprisonment. This would mean that, although Mr Wiki may have been eligible for parole as from June 2020, his sentence would not expire until 28 February 2026.7 The Judge would also have been well aware that, having been recalled to prison after offending twice whilst on parole already, Mr Wiki is unlikely to be released on parole again in the near future. He is at risk of serving a considerable portion of his sentence before being released again.

[11]   I consider this factor prompted the Judge to impose a concurrent sentence on the present charges. He did so to preserve the sentence expiry date of the sentence imposed on the earlier charges. This resulted in the sentence expiry date on those charges being 28 May 2024 rather than 28 February 2026 as would have been the case with the imposition of a cumulative sentence. Furthermore, given the fact that Mr Wiki is now likely to be required to continue serving the earlier sentence of six years

5      Section 75.

6      It may have been slightly earlier than that date depending on when Mr Wiki was remanded in custody on the previous charges.

7      Although it may be slightly earlier than that depending on how long Mr Wiki spent in custody before being sentenced on the original charges.

nine months imprisonment, the imposition of a short concurrent sentence on the present charges means Mr Wiki is unlikely to spend any additional time in prison as a result of that sentence.

[12]   It follows that I do not accept the Judge was mistaken when he imposed a concurrent sentence rather than a cumulative sentence.

Totality

[13]   Ms Gilbert also submits the Judge ought to have reduced the sentence imposed on the present charges to reflect totality principles. She points out that s 85(2) of the Sentencing Act 2002 required the Judge to ensure that the overall sentence was not out of all proportion to the overall gravity of the offending.

[14]   I do not accept this submission for three reasons. First, s 85(2) applies when cumulative sentences are imposed. It does not, strictly speaking, apply to concurrent sentences. Having said that, I accept the sentence on the present charges needed to be proportionate to the overall gravity of the offending.

[15]   Secondly, the offending was serious. It involved the possession of drugs, firearms and ammunition whilst Mr Wiki was subject to prison release conditions. I do not consider a sentence of 21 months imprisonment was disproportionate to the overall gravity of the offending.

[16]   Thirdly, for the reasons set out above I do not consider the sentence will result in Mr Wiki spending any extra time in prison.

Result

[17]The appeal against sentence is dismissed.

Lang J