Wilson v Police - [2015] NZHC 1830

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2015-483-17 [2015] NZHC 1830

UNDER the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence pursuant to s
244 of the Criminal Procedure Act 2011

BETWEEN

RAUKAWA TEINA WILSON Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 July 2015

Counsel:

S J Burlace for Appellant
N A Refoy-Butler for Respondent

Judgment:

5 August 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] Mr Wilson pleaded guilty to one charge of burglary. He was sentenced by Judge Roberts in the District Court at Whanganui on 29 June this year to an end sentence of 15 months’ imprisonment.1 Mr Wilson now appeals that sentence as being manifestly excessive.

[2] Mr Wilson argues that an end sentence of 13 months’ imprisonment, converted to six months’ home detention, is the appropriate sentencing outcome. Given the one month he has already spent in prison, Mr Wilson further argues that
that period of six months should be reduced to four months.

1 New Zealand Police v Wilson [2015] NZDC 12925.

WILSON v NEW ZEALAND POLICE [2015] NZHC 1830 [4 August 2015]

Facts

[3] In the early evening of 10 March 2015 Mr Wilson, in an intoxicated state, walked to the front door of a house, knocked and waited for a response. A CCTV camera recorded him looking up, and waving as though to acknowledge the camera.

[4] Mr Wilson then climbed over a side fence and went to the back of the house. He picked up a brick and attempted to smash a window unsuccessfully. He then moved to the side of the house and succeeded in breaking a window using the same brick. He opened that window and climbed into the house.

[5] Inside the house he moved through a number of rooms, collecting items including a PlayStation 3, several games, food from the freezer, cameras and a cellphone. Whilst removing the PlayStation he smashed a large flat screen television and ripped gib board from the walls. He put all the items he had taken into a washing basket, placed a guitar belonging to the victim over his shoulder and left the property by the front door.

[6] When spoken to by the police, Mr Wilson said he was extremely intoxicated and high on synthetic cannabis at the time and could not really remember what he had done.

[7] Mr Wilson is 29 years old and has a reasonably lengthy criminal and traffic conviction history. He has, however, only offended on one occasion (wilful damage
– reparation of $350 ordered) since August 2008. Up until then Mr Wilson had, by my calculation, some 43 convictions, including six as an adult for burglaries committed between November 2005 and October 2007.

[8] The owner and occupier of the house that Mr Wilson burgled commented in his victim impact statement that it was the fifth time he had been burgled at that house. He said he was sick and tired of coming home to burglaries and that he…

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: [2015] NZHC 1830
Decision Date: 5 August 2015

CaseChat Overview and Summary

Raukawa Teina Wilson appealed against the sentence of 15 months' imprisonment imposed on him for burglary. The District Court had taken into account the significant damage to property, the repeat nature of the offence, and the risk of confrontation with occupants. It also considered Mr Wilson's previous convictions for burglary and his failure to address his alcohol and drug dependency issues. The Court of Appeal considered whether the sentence was manifestly excessive and whether home detention was an appropriate sentence for Mr Wilson. The appeal was allowed and the sentence was substituted with six months' home detention. The Court held that the District Court had given insufficient weight to the seven years that had passed since Mr Wilson's previous conviction for burglary and had mischaracterised Mr Wilson as a recidivist burglar. The Court held that the appropriate starting point sentence was 18 months' imprisonment, with a two month uplift for previous offending, and a three month discount for Mr Wilson's remorse and early guilty plea. The Court held that home detention was an appropriate sentence for Mr Wilson, given his compliance with bail conditions and his willingness to address his alcohol and drug dependency issues.

The final orders of the Court were that the sentence of 15 months' imprisonment be quashed and substituted with a sentence of six months' home detention. The home detention address was to be 117 Cornfoot Street, Whanganui, and Mr Wilson was subject to standard conditions on release and during the period of home detention. Additionally, Mr Wilson was not to consume alcohol or any unlawful or non-prescription drugs and was to attend and undertake such courses or treatment for alcohol and drug use as his probation officer determined.

Orders