Wilson-McAlister v Police

[2021] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2021-463-06

[2021] NZHC 800

BETWEEN

TRIDENT-HYDE TUKOTUKU WILSON- MCALISTER
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 March 2021 (AVL)

Appearances:

J Sparrow for the Appellant

R W Jenson for the Respondent

Judgment:

14 April 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 14 April 2021 at 3:00 pm

Registrar/Deputy Registrar

MCALISTER v NEW ZEALAND POLICE [2021] NZHC 800 [14 April 2021]

[1]    On 20 October 2020 Mr Wilson-McAlister pleaded guilty to one charge of injuring with reckless disregard.1 He was sentenced to 18 months’ imprisonment by Judge Mabey QC in the District Court at Tauranga on 11 January 2021.2 The Judge did not consider a sentence of home detention was appropriate.

[2]    Mr Wilson-McAlister appeals against sentence on the basis that home detention was the appropriate outcome.

Background

[3]    On the evening of 11 July 2020, the complainant was at a bar in Mt Maunganui. Mr Wilson-McAlister arrived at the bar with another person who is a patched gang member. There was a conversation between the complainant and the gang member. The gang member became upset and aggressive. He threatened the complainant.

[4]    During this conversation, Mr Wilson-McAlister positioned himself behind the complainant. Two associates stood on either side of him. The complainant did not see Mr Wilson-McAlister. Mr Wilson-McAlister then struck the complainant with his right fist on the right side of her face. She was rendered unconscious and fell to the floor. Mr Wilson-McAlister left.

[5]    The complainant was unconscious for about 90 seconds. The force caused damage to her teeth which required medical attention. She has had ongoing health issues connected with the concussion.

District Court decision

[6]    The Judge viewed CCTV footage of the assault. He noted the considerable size difference between Mr Wilson-McAlister and the complainant, that she did not know he was behind her, the application of force by him to the complainant from behind was significant and without warning, and that she was clearly unconscious immediately after she was struck.

1      Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.

2      Police v Wilson-McAlister [2021] NZDC 235.

[7]    As to personal features, the Judge acknowledged Mr Wilson-McAlister’s prior convictions did not disclose a history of violence, that he was employed and supported a family. The Judge noted that he reported giving up alcohol after the assault.

[8]    In setting a starting point, the Judge considered the offending was in band 2 of Nuku v R,3 at the upper end. This provided for a starting point of up to three years where three or fewer of the aggravating factors identified in R v Taueki were present.4 Those aggravating factors accepted by the Judge were the premeditation involved, an attack to the complainant’s head, and the vulnerability of the victim given the size disparity between Mr Wilson-McAlister and the complainant. After comparing to other cases, the Judge settled on a starting point of two years’ imprisonment.

[9]    The Judge rejected submissions on Mr Wilson-McAlister’s behalf that he was entitled to discounts for youth, remorse, efforts at rehabilitation and prior good character. The only discount allowed was for an early guilty plea. The Judge accepted Mr Wilson-McAlister was entitled to the full discount of 25 per cent, bringing the end sentence to 18 months’ imprisonment.

[10]   A sentence of home detention was not one the Judge considered appropriate in this case. The level of brutality in the assault meant home detention would be much less than the least restrictive outcome.

Grounds of appeal

[11]   On behalf of Mr Wilson-McAlister, Mr Sparrow does not challenge the starting point of two years’ imprisonment, nor the discount that the Judge allowed. He focuses merely on the Judge’s refusal to commute the sentence of imprisonment to one of home detention. Mr Sparrow says that this decision was wrong for two reasons. First, it was inconsistent with other cases. Second, the Judge did not impose the least restrictive outcome.

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

4      R v Taueki [2005] 3 NZLR 372 (CA).

Relevant principles

[12]   There is no presumption in the Sentencing Act 2002 for or against commutation of imprisonment to home detention. The decision calls for an exercise of judgment on a case by case basis against the statutory principles and purposes of sentencing that a sentencing judge is called upon to asses when determining whether home detention is an adequate response to the seriousness of the offending.5

[13]   For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.6 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.7 This standard of appellate review applies to decisions not to commute imprisonment to home detention as it does to any other sentence. However, the margin of appreciation extended to judges in deciding whether to commute a prison term to a sentence of home detention is usually significant.8

Decision

Consistency with other sentences

[14]   One of the mandatory principles of sentencing provided for in s 8 of the Sentencing Act is the “general desirability” of consistency of “appropriate sentencing levels” when dealing with similar offenders who commit similar offences in similar circumstances.9 Mr Sparrow relies on the three cases he provided to the Judge to support his submission that the sentence was inconsistent with this principle of sentencing.10 Mr Sparrow submits that Mr Wilson-McAlister’s offending was more serious than that in Gilliland, where the defendant received a sentence of community work, but less serious than that in either Burton or Te Puni. In Burton, the defendant

5      Palmer v R [2016] NZCA 541 at [19].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27] and [31]-[35].

7 At [36].

8      Palmer v R [2016] NZCA 541 at [18] and [19].

9      Sentencing Act 2002, s 8(e).

10     Gilliland v Police [2019] NZHC 289, Burton v Police [2017] NZHC 664 and Te Puni v Police

[2019] NZHC 762.

was sentenced to home detention while in Te Puni a sentence of imprisonment of 13

½ months was imposed. Mr Sparrow says that the injuries sustained by the complainant in this case were not nearly as serious as those inflicted by the defendants in Burton and Te Puni, but Mr Wilson-McAlister’s sentence was a term of imprisonment well in excess of the sentences in those cases.

[15]   Sentencing is a process that takes into account not merely the circumstances of the offending but also the circumstances of the offender. A final sentence for similar offending is not necessarily going to be similar, because the personal circumstances of offenders can vary widely. Mr Sparrow does not dispute the Judge’s approach for dealing with Mr Wilson-McAlister’s personal aggravating and mitigating features.

[16]   The Judge adopted a starting point of two years and reduced that by 25 per cent for Mr Wilson-McAlister’s guilty plea. No other discounts for personal mitigating circumstances were allowed. In Burton, the sentencing Judge took a starting point of 30 months’ imprisonment. Discounts of six months for personal mitigating features and six months for a guilty plea were applied. This took the sentence to eighteen months’ imprisonment, which was commuted to a sentence of ten months’ home detention. The Judge deducted a further two months for systemic administrative delays in sentencing from the sentence of home detention, resulting in a final sentence of eight months’ home detention. The sentence was affirmed on appeal.

[17]   The violence applied to the complainant in that case was more serious than in this case, but only to a matter of degree. There the defendant struck the intoxicated complainant in the chin, causing him to fall, and then kicked him on the ground until he was unconscious. Mr Wilson-McAlister applied considerable force in a single blow, to a victim who was more vulnerable, causing her to lose consciousness before she was even on the ground. In any event, the difference in the level of violence was reflected in the two-year starting point Judge Mabey adopted. It was six months lower than the starting point in Burton. The reason for the divergent outcome in the cases rests solely on the personal circumstances of the defendants. In Burton, the defendant was entitled to much greater discounts for personal circumstances than Mr Wilson- McAlister. And, as I have noted, Mr Sparrow does not challenge the Judge’s assessment of Mr Wilson-McAlister’s personal circumstances.

[18]   In Te Puni, the defendant struck the complainant once in the face with such force that he was knocked unconscious and blood began coming from his nose and ears. The complainant spent two days in intensive care and a bone was fractured behind his ear. He suffered brain injuries that affected his smell, taste and vision and required ongoing medical treatment. Those were more serious injuries than the complainant in this case received, but she also sustained serious injuries and similar force was applied to her.

[19]   In Te Puni, the sentencing Judge adopted a starting point of 24 months with an uplift of one month to take account of a charge of breaching bail. A discount of six months for youth was allowed and a further month for remorse. This resulted in a sentence of 18 months’ imprisonment. A discount of 25 per cent for a guilty plea was allowed, giving the final sentence of 13 ½ months. This was affirmed on appeal. Again, the final sentence reached was a consequence of factors personal to the defendant. Indeed, the starting point of 24 months in Te Puni for similar offending, albeit on the more serious charge of injuring with intent to injure, indicates the starting point adopted by Judge Mabey was consistent with other cases.

[20]   I can see no error in the sentence that the Judge reached or that it was inconsistent with other similar cases. Offenders in those cases had different personal circumstances.

Home detention

[21]   Mr Sparrow submits that the Judge erred in not commuting the sentence of imprisonment to a sentence of home detention because it was the least restrictive outcome.11 Mr Sparrow sets out a range of relevant factors in his submissions. He says it is inconsistent with previous sentencing levels, that home detention was recommended in the PAC report, that a suitable address was available, and that Mr Wilson-McAlister has not previously been sentenced to home detention. Mr Sparrow also submits that this is Mr Wilson-McAlister’s first offence involving violence and is out of character, that he has addressed the causes of his offending by abstaining from alcohol since the assault, and that he is in full-time employment and is sole provider

11     Sentencing Act 2002, s 8(g).

for his partner and child. Finally, Mr Sparrow adds Mr Wilson-McAlister had been on curfew since August 2020 without breach.

[22]   Mr Jenson, for the respondent, submitted that there was no error in the Judge’s approach. In determining that home detention was not an available sentencing option, Judge Mabey took account of the purposes and principles of sentencing. Those he identified were accountability, denunciation, personal and general deterrence and taking account of the circumstances of the victim. Rehabilitation was also a relevant consideration. The Judge concluded that home detention would be much less than the least restrictive outcome for this brutality and violence.12

[23]   I agree with Mr Jenson’s submission. I do not consider the Judge made any error. There were factors that favoured a sentence of home detention, such as Mr Wilson-McAlister’s personal circumstances and the benefits which would come from rehabilitation in the community on a first offence involving serious violence and injury. The Judge took those factors into account. However, those factors were outweighed by the need for denunciation, deterrence and the effect on the complainant given the seriousness of the offending. As the Judge said, this was a premeditated attack to the head of a vulnerable complainant, causing serious injury. The seriousness of the offending and the importance of deterrence point to a sentence of imprisonment.

[24]   In my view, the Judge was correct to determine that home detention would be much less than the least restrictive outcome for this offending.

Result

[25]The appeal against sentence is dismissed.

Campbell J

12     Police v Wilson-McAlister [2021] NZDC 235 at [23].