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…

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: [2021] NZHC 800
Decision Date: 14 April 2021

CaseChat Overview and Summary

The appeal in Wilson-McAlister v Police involves an appeal against sentence by the appellant, Mr Wilson-McAlister, who had pleaded guilty to a charge of injuring with reckless disregard and was sentenced to 18 months' imprisonment. The legal issues before the Court were whether the District Court Judge had erred in not commuting the sentence to home detention, and whether the sentence was inconsistent with other sentences imposed for similar offences. The Court found that there was no error in the Judge's approach, and that the sentence was consistent with other sentences for similar offences. The Judge had taken into account the purposes and principles of sentencing, including accountability, denunciation, deterrence, and the circumstances of the victim, in determining that home detention would be much less than the least restrictive outcome for the offending. The appeal against sentence was dismissed.

In reaching its decision, the Court considered the principles of sentencing and the purpose behind the sentencing process. The Court found that the Judge had appropriately exercised their discretion in determining the appropriate sentence for Mr Wilson-McAlister, taking into account the seriousness of the offending and the need for denunciation and deterrence. The Court also found that the sentence was consistent with other sentences for similar offences, despite differences in the personal circumstances of the offenders. The Court held that the Judge was correct to determine that home detention would be much less than the least restrictive outcome for the offending, given the premeditated nature of the attack and the serious injury caused to the complainant.

Orders