Wilson v Police - [2024] NZHC 1990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000159

[2024] NZHC 1990

BETWEEN
MICHAEL WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 June 2024

Appearances:

J Olsen for the Appellant

J Gibson for the Respondent

Judgment:

18 July 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 18 July 2024 at 3 pm Registrar/Deputy Registrar

Solicitors:

J Olsen, Barrister, Auckland
J Gibson, Meredith Connell, Auckland

WILSON v POLICE [2024] NZHC 1990 [18 July 2024]

[1] Michael Stuart Wilson pleaded guilty to breaching a protection order, 1 and personating police. 2 On 28 March 2024, in Manukau District Court, Judge K Lummis discharged him on the protection order charge but convicted him on the personating charge. 3 He was sentenced to nine months’ supervision, with a special condition to attend a Stopping Violence or Anger Management programme.

[2] Mr Wilson now appeals the Judge’s dismissal of his application for a discharge without conviction on the personating charge. In the alternative, he appeals his sentence.

[3]The respondent opposes the appeal.

The offending

Breach of a protection order

[4] Although the appeal relates only to the charge of personation, the whole picture before the District Court is relevant.

[5] There is a protection order in force against Mr Wilson in favour of his ex-partner - it also includes the pair’s two children. The order has a special communication condition requiring Mr Wilson and his ex-partner to communicate about parenting matters on the “Our Family Wizard” application.

[6] On 17 August 2022, Mr Wilson sent his ex-partner two direct messages on that platform. Both were abusive; the second message particularly so. That resulted in the charge of breach of a protection order.

Personating police

[7] The complainant lives on a property with a shared driveway. Mr Wilson owns the other property. The complainant had previously approached the occupiers of

1      Family Violence Act 2018, s 103(1) and 112(1)(a); maximum penalty three years’ imprisonment.
2      Policing Act 2008, s 48(1)(a); maximum penalty 12 months’ imprisonment and/or a $15,000 fine.
3      Police v Wilson [2024] NZDC 6958.

Mr Wilson’s property with an invoice for their share of the driveway maintenance cost. That resulted in a dispute between the complainant and the occupiers of that address.

[8] On 18 August 2022, a day after the breach of the protection order, Mr Wilson left the complainant a voicemail. He identified himself as Constable Stan Shaw from the New Zealand Police. He said that he would be looking to charge the complainant with blackmail and threatening behaviour.

[9] When the complainant spoke to the “Police Crime Reporting Line” she learned that there were no police constables by that name. She reported the incident to the police. That resulted in the charge of personation.4

Decision under appeal

[10] Mr Wilson sought a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act).

[11] At sentencing, the Judge raised issues regarding the breach of…

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 [2024] NZHC 1990
Case: [2024] NZHC 1990
Decision Date: 18 July 2024

CaseChat Overview and Summary

Michael Wilson appealed against the decision of the Manukau District Court to convict him of personating a police officer, and to refuse his application for a discharge without conviction under section 106 of the Sentencing Act 2002. The appeal also included a challenge to the sentence of nine months’ supervision imposed on the personating charge. The appeal was against both conviction and sentence. The respondent opposed the appeal. The appellant argued that the Judge erred in assessing the gravity of the overall offending, rather than the gravity of each separate charge, and in failing to give sufficient weight to the mitigating factors in his favour. The appellant also argued that the sentence of supervision was not proportionate to the gravity of the personating charge. The respondent submitted that the Judge correctly assessed the culpability of the offending as a whole and its gravity and was entitled to make any order she considered necessary in sentencing for the remaining conviction. The Court found that the Judge was entitled to assess the gravity of the offending collectively, given the common underlying thread of immature behaviour and the fact that the charges occurred close in time and stemmed from the same personal distress and frustration on Mr Wilson’s part. The Court found that the Judge erred in concluding that the adverse consequences of a conviction were not out of all proportion to the gravity of the personating offending. The Court found that the consequences of conviction on Mr Wilson’s business and community work were out of all proportion to the gravity of the offence. The Court allowed the appeal, set aside Mr Wilson’s conviction, and discharged him without conviction on the charge of personating a police officer.

Orders