Wilson v Police - [2014] NZHC 2128

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000060 [2014] NZHC 2128

AARON JOHN LESLIE WILSON Appellant

v

NEW ZEALAND POLICE
and

DEPARTMENT OF CORRECTIONS Respondents

Hearing: 4 September 2014

Counsel:

N R Rout for Appellant
MAJ Elliott for Respondent

Judgment:

4 September 2014

JUDGMENT OF WHATA J

[1] Mr Wilson has filed two notices of appeal in relation to sentences imposed on him under the Summary Proceedings Act 1957 and under the Criminal Procedure Act 2011. The essential complaint, however, is that the appellant’s overall sentence for various types of offending was manifestly excessive amounting to a total of
26 months two weeks imprisonment on a variety of charges, some of which are resentences.

[2] The Crown accepts that it is open to me to reconsider the sentence imposed on some of the charges with the potential reduction of four months imprisonment in
the overall sentence.

WILSON v NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS [2014] NZHC 2128 [4 September 2014]

[3] I turn to examine whether the Judge below erred and if so whether the individual sentences or the overall sentence should be reduced.

Background

[4] The Crown helpfully identifies that there are four groups of charges. The first group of charges relates to matters which sentences were imposed on 6 August
2012. The appellant was sentenced to 90 hours community work for cultivating cannabis, possession of methamphetamine and possession of utensils. The sentences had been partly performed, leaving 41 and three-quarter hours of community work to be performed at the time of resentencing. The Judge on resentencing imposed a one month imprisonment on each, with the cultivation charge cumulative to the other charges.

[5] The second group of charges related to charges to which the appellant was originally sentenced on 11 January 2013. He was sentenced to one charge of driving while disqualified (third or subsequent) and two charges of possession of utensils. A sentence of 140 hours community work plus disqualification from driving for one year and one day was imposed.

[6] The Judge resentenced the appellant on a cumulative basis (unlike the previous Judge) to a substituted sentence of two months and two weeks.

[7] The third group of charges relates to matters originally sentenced on 11 July

2013. The group of charges included four of driving whilst disqualified (third and subsequent). There was a breach of community work.

[8] The appellant was resentenced to seven months imprisonment in substitution for nine months intensive supervision.

[9] The fourth group of charges concerned driving whilst disqualified (third and subsequent) and failing to stop for red and blue flashing lights and driving whilst forbidden.

[10] The Judge adopted a starting point of 18 months and added two months for aggravating factors. A five month credit was given resulting in a sentence of
15 months imprisonment. A further period of disqualification of one year and one day and a further three months disqualification on the charge of failing to stop was also imposed.

The grounds 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.

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Details

Case: [2014] NZHC 2128
Decision Date: 4 September 2014

CaseChat Overview and Summary

The appellant, Aaron John Leslie Wilson, appealed against sentences imposed by the District Court under the Summary Proceedings Act 1957 and the Criminal Procedure Act 2011. The primary complaint was that the total sentence of 26 months and two weeks was excessive, considering the nature of the offences and the appellant's history of offending. The respondents were the New Zealand Police and the Department of Corrections. The appellant argued that the sentences were disproportionately harsh, particularly in relation to substituting imprisonment for community work, and that the total sentence did not adequately reflect his changed behaviour and efforts to distance himself from criminal activities.

The legal issues before the court were whether the sentences imposed on various charges were appropriate and whether the overall sentence was excessive. The court needed to consider whether the substitution of imprisonment for community work and the cumulative nature of some sentences were justified under the principles of sentencing. Additionally, the court had to assess whether the starting points for sentencing certain offences were appropriate and if the total sentence adequately reflected the appellant's overall offending history and the principles of sentencing.

The court found that some of the sentences were disproportionate. Specifically, the court identified errors in the resentencing process for the third group of charges, where a sentence of seven months imprisonment was substituted for nine months of intensive supervision. The court also found that the starting point for the fourth group of charges was arguably excessive. Furthermore, the court determined that the Judge had erred in substituting a sentence of two months and two weeks for 50 hours of community work, which should have been imposed concurrently rather than cumulatively. As a result, the court reduced the overall sentence by ten months and two weeks, resulting in a final sentence of 16 months. The court concluded that this sentence adequately served the purposes and principles of sentencing, considering the totality of the appellant's offending and his changed behaviour.

The court ordered a reduction in the overall sentence to 16 months imprisonment, following the correction of the identified errors in sentencing.

Orders