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Wilson v Police

Wilson v Police

Case [2016] NZHC 506 23 March 2016

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000113 [2016] NZHC 506

BETWEEN
AARON JOHN LESLIE WILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 March 2016

Appearances:

D Matthews & T Smedley for the Appellant
S E Burdes for the Police

Judgment:

23 March 2016

JUDGMENT OF NATION J

Background

[1] Mr Wilson appeals against a sentence of two years four months’ imprisonment on four charges of driving while disqualified, third or subsequent (his thirteenth to sixteenth such charges), imposed by Judge Farish on 11 March 2015.1

[2] Mr Wilson now appeals on the basis that the end sentence was manifestly excessive.

[3] Mr Wilson also seeks leave to appeal out of time, as eight months had passed between sentencing and the filing of the general notice of appeal.

Principles on appeal / Approach on appeal

[4] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence

1 New Zealand Police v Wilson [2015] NZDC 3964.

WILSON v POLICE [2016] NZHC 506 [23 March 2016]

imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposed was “manifestly excessive”.4 As has been stated:5

The High 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 is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

Leave to appeal out of time

[5] Mr Wilson sought leave to appeal out of time on the basis his instructions to appeal had not been adequately pursued by his then counsel.

[6] As the enactment conferring the right of appeal, the CPA permits such an extension.6 The “touchstone” for granting such an application is the interests of justice in the particular case.7 Factors of relevance to the overall balancing test approach include:8

… the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

[7] Such applications for leave routinely reduce to the reasons for the delay and the merits of the proposed appeal.9 In this instance, the appellant has explained the reasons for the delay. The basis for his appeal has sufficient merit for the appeal to be reasonably arguable. For that reason, at the hearing, I granted leave to appeal out of time.

Judge Farish’s approach

[8] At the outset of her sentencing notes, Judge Farish emphasised that Mr

Wilson’s four convictions occurred not only whilst he was subject to release

2      Criminal Procedure Act 2011, s 250(2).
3      Criminal Procedure Act 2011, s 250(3).
4      Tutakangahau…

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.

Continue reading Wilson v Police

Details

AGLC: Wilson v Police [2016] NZHC 506
Case: [2016] NZHC 506
Decision Date: 23 March 2016

CaseChat Overview and Summary

In Wilson v Police, Aaron John Leslie Wilson appealed against a two years and four months' imprisonment sentence imposed by Judge Farish for four charges of driving while disqualified, each being a third or subsequent offence. Wilson argued the sentence was manifestly excessive, and he sought leave to appeal out of time due to a delay in filing the appeal. The court considered whether the sentence was within the acceptable range for such offences and if the delay in filing the appeal could be justified. The sentencing judge had highlighted Wilson's history of disregarding court orders, including driving while disqualified even under strict bail conditions. She emphasised the protective purpose of disqualification and deemed Wilson a high risk to the community due to his untreated drug issues and persistent offending pattern.

The court found that while there was an error in the way one charge was laid, which affected the starting point for sentencing, it did not lead to a manifestly excessive sentence. The court held that the sentence was appropriate given Wilson's extensive history of similar offences and his disregard for court orders. The appeal was dismissed, and the original sentence was upheld.

Orders