Wilson v Police
[2013] NZHC 3455
•18 December 2013
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2013-454-32 [2013] NZHC 3455
BETWEEN BONNIE TAMARA WILSON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 16 December 2013
Appearances: S N Hewson for the appellant
B D Vanderkolk for the respondent
Judgment: 18 December 2013
JUDGMENT OF CLIFFORD J
Introduction
[1] Bonnie Tamara Wilson, the appellant, was sentenced by Judge G M Ross in the District Court at Levin to two years and two months imprisonment after she pleaded guilty to five charges of burglary, one of theft of a motor car and one charge of receiving. Ms Wilson now appeals that sentence as being wrong in principle and manifestly excessive.
Ms Wilson’s offending
[2] On 20 February 2013, at 7.30am, Ms Wilson and two associates burgled
14 Lyndale Place, Palmerston North. They stole a range of electronic equipment, a gun safe containing a rifle and ammunition, and clothing and a wallet. Those items
were valued, conservatively, at $20,000.
WILSON v POLICE [2013] NZHC 3455 [18 December 2013]
[3] Between the early afternoon of 1 March 2013 and the early evening of
3 March 2013 Ms Wilson and an associate (Mr J Crothers) burgled four houses in the
Kapiti/Horowhenua and Manawatu areas:
(a) 18 MacArthur Street, Levin (between 1.30pm and 3.30pm,
1 March 2013) from where they stole two motorbikes, a gaming console and other computer equipment, with a combined value of
$11,000;
(b) 60 Margaret Road, Palmerston North (approximately 8.30pm,
1 March 2013) from where they stole gold jewellery estimated to be worth in excess of $25,000;
(c) Greenaway Road, Waikanae (2 March 2013) from where they stole a
BMW racing motorbike and other items, with a combined value of
$50,000; and
(d) 44 Margaret Street, Palmerston North (between 9.00pm,
3 March 2013 and 7.00am, 4 March 2013) where they attempted unsuccessfully to steal two motor vehicles.
[4] During the same period of time Ms Wilson and Mr Crothers also stole a Subaru WRX Impreza motor vehicle from a driveway of a Palmerston North address. Ms Wilson (and I assume Mr Crothers) faced one charge of theft as a result.
[5] Finally, Ms Wilson also faced one charge of receiving stolen goods from
Mr Crothers. I infer Ms Wilson had not been involved in the theft of those goods.
[6] As a result of that spree, Ms Wilson was arrested with her associate
Mr Crothers on 8 March 2013.
[7] The victim impact statements record not only the fact of financial loss, but also the emotional harm occasioned by the burglaries and the loss of irreplaceable personal items
The sentencing decision
[8] When sentencing Ms Wilson, and as relevant to her appeal, the District Court Judge, having noted the number of burglary charges Ms Wilson faced, the value (both financial and otherwise) and the range of stolen property and the serious impact of Ms Wilson’s offending on her victims:
(a) identified a starting point sentence in respect of the burglary charges of two years and six months (compared to that of three years for Mr Crothers);
(b)added a further three months with respect to the stand-alone theft and receiving offending; and
(c) allowed a reduction of 20 per cent for Ms Wilson’s guilty pleas (given the various dates at which they had been entered),
to arrive at an end sentence of two years’ and two months’ imprisonment.
[9] On that basis, the Judge noted that home detention was not available and observed, in response to a letter from Ms Wilson who had been on remand for some eight weeks and who had communicated her wish not to return to prison, that that was something she had brought on herself in terms of “an incapacity to comply with bail terms over a period of time”.
Analysis
[10] In arguing this appeal for Ms Wilson, Mr Hewson placed less emphasis on the “manifestly excessive” ground of appeal and emphasised the “wrong in principle” ground of appeal. I therefore consider the “wrong in principle” argument first.
Sentence wrong in principle?
[11] The basis of that second ground of appeal related to the Judge’s conclusion
that, given he had arrived at an end sentence of two years and two months, home
detention was not an available sentencing option. In his written submissions
Mr Hewson made that point this way:
With respect this [the Judge’s conclusion that home detention was not available due to the length of the end sentence – two years two months] is an error even accepting the start point and end point for the purposes of the appeal, the fact that the Appellant had spent in excess of two months remanded in custody enabled the learned Sentencing Judge to make a further reduction of the end point sentence clearly fitting then within a sentence of short duration and requiring consideration of the less restrictive option of home detention pursuant to sections 10A, 15A and 17 of the Sentencing Act
2002.
[12] As I understood matters when hearing this appeal, Mr Vanderkolk for the Crown acceded to that proposition: that is, that the time Ms Wilson had spent on remand could be taken into account when determining whether home detention was an available sentence.
[13] I am unable to accept that proposition. Eligibility to be considered for a sentence of home detention is governed, as relevant, by s 15A(1)(b) of the Sentencing Act 2002. That section provides that the Court may only impose a sentence of home detention if “the Court would otherwise sentence the offender to a short-term sentence of imprisonment”. A short-term sentence of imprisonment is
one of 24 months or less.1 Section 82 of the Sentencing Act further provides that, in
determining the length of any sentence of imprisonment to be imposed, the Court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act 2002. On that basis, I do not consider that the Judge could, as Mr Hewson suggested he should, have taken account of the time Ms Wilson had spent on remand when determining the sentence of imprisonment.
[14] I acknowledge that, once a Judge has arrived at a sentence of short term imprisonment and is considering whether, and if so for how long, a sentence of home detention should be imposed, time spent on remand may be a relevant consideration. It may count against the need for a sentence of imprisonment in and of itself, and may affect the term of the appropriate sentence of home detention. But, given the
clear provisions of s 82, I do not think it is correct to say that time spent on remand
1 Parole Act 2002, s 4.
can be taken into account at the earlier point when the term of the sentence of imprisonment that would otherwise be imposed is determined. Such an approach would appear to be inconsistent with that endorsed by the Court of Appeal in R v Vhavha.2 In that case William Young J, then President and dissenting but in comments endorsed by the majority, observed:3
The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (“stage one”) and then whether to commute that sentence to home detention (“stage two”). Similar (at least broadly) two stage processes were associated with the power to suspend prison sentences and the power to give leave to apply for home detention – the precursors of the present discretion to sentence to home detention. Faithful adherence to such processes requires the judge at stage one to operate on the assumption that there is no stage two. The underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned.4
[15] Such an approach would also risk conflict with the observation of the Court of Appeal in Solicitor-General v Lam which rejects any attempt by a sentencing Judge to tailor the length of the appropriate prison sentence so that it is artificially reduced to two years and makes the offender eligible for home detention.5
[16] Having said that I acknowledge that in another Court of Appeal decision, Kidman v R, an alternative view is indicated.6 Kidman concerned the question of the credit to be given, when a sentence of home detention is imposed, for any period spent on remand. That is, it was a question of stage two of the process. For the appellant Kidman it was argued that a mechanistic approach was required, similar to that provided by the Parole Act where time spent on remand is credited on a day for day basis against time to be served on a sentence of imprisonment.7 The Court of
Appeal rejected that approach, and considered that it was a matter for the sentencing
2 R v Vhavha [2009] NZCA 588.
3 At [14].
4 Reflecting that this area is not without difficulty, William Young J went on to observe:
But while there is thus good reason for the legislature to require a two stage approach to sentencing, the artificiality of the intellectual processes which are involved can cause sentencing judges some difficulty. This is particularly so as two stage sentencing processes put pressure on conventional ideas about the hierarchy of sentences.
5 Solicitor-General v Lam (1997) 15 CRNZ 18 (CA).
6 Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 (CA).
7 Parole Act 2002, s 90(1).
judge to decide in his or her discretion. In that context, the Court of Appeal observed:8
For example, if a discretionary approach is retained, a judge may take time served into account in order to bring a person’s end sentence down below two years so that home detention can be considered. The [mechanistic] approach advocated by Mrs Hunt would prevent this.
[17] In my view, and although I acknowledge a contrary interpretation could be taken, the Court of Appeal’s comments are to be understood in the particular context of Kidman, namely an assessment, in circumstances where home detention is available because a short-term sentence of imprisonment would otherwise have been imposed, of the credit that should be given for time spent on remand.
[18] On that basis, I dismiss Ms Wilson’s appeal on the “contrary to principle”
point and turn to her “manifestly excessive” ground of appeal.
Two years two months manifestly excessive?
[19] I do not think it can be argued that the sentence of two years and two months imposed was, however the Judge might have arrived at that sentence, manifestly excessive. Ms Wilson, albeit initially a first time burglar on 20 February 2013 when she and Mr Crothers burgled 14 Lyndale Place, thereafter engaged in a serious spree of burglary and theft offending. Residential addresses were broken into. Goods of a considerable monetary value were taken. Moreover, goods of considerable personal and sentimental value were also taken. Whilst the courts may generally not sentence first time burglary offenders to imprisonment, given the nature of Ms Wilson’s offending that simply is not an outcome that can apply to her. A sentence of imprisonment was, in my view, inevitable. Furthermore, the term of imprisonment imposed by the Judge is not out of line – as he himself analysed in his sentencing notes – with terms of imprisonment imposed for similar offending.
[20] Mr Hewson also advanced a disparity argument in support of this ground of appeal. He said that, particularly after the uplift for the theft and receiving
offending, there was not sufficient distinction between the start point sentences for
8 At [15].
Ms Wilson and her accomplice Mr Crothers. Mr Crothers, Mr Hewson put to me, was a recidivist offender with a considerable history. Whilst the details of that history were not placed before me, I accept that submission: for the Crown Mr Vanderkolk did not seek to dispute it. I also accept, as the sentencing Judge did, that Mr Crothers may have been the initiator of the offending, as opposed to Ms Wilson. Having said that Ms Wilson was an enthusiastic and active participant in what was a serious spree of burglaries. The Judge did recognise the difference in Mr Crothers’ and Ms Wilson’s offending. Although that difference was muted by the uplift in Ms Wilson’s starting point sentence for the theft and receiving charges, in my view Ms Wilson and Mr Crothers’ different culpability is reflected in the different end sentences arrived at and any failure by the Judge to recognise their different culpability is a matter of degree, rather than being sufficiently acute as to provide a basis for allowing this appeal on the grounds of disparity.
[21] I therefore dismiss this appeal by Ms Wilson, an outcome which I consider to be required by relevant sentencing law and principles.
[22] In doing so, however, I am not unmindful of the context within which this appeal has been brought on Ms Wilson’s behalf by Mr Hewson.
[23] It was the possibility of home detention that Mr Hewson was, not unnaturally at this time of year, trying to achieve for Ms Wilson,
[24] Ms Wilson has two young children and an early return as their caregiver may well be appropriate. Having said that, Ms Wilson’s mother now has custody of those children and there are issues to be pursued in the Family Court.
[25] I also acknowledge that Ms Wilson’s breach of bail, which the sentencing Judge viewed very unfavourably, may have had a more benign explanation than Mr Hewson was aware of at the time Ms Wilson was sentenced. That is, Mr Hewson now understands that Ms Wilson has a very difficult relationship with her mother. That relationship is so difficult that it would now appear that releasing her on bail to her mother’s address was doomed to fail.
[26] Moreover, whilst a suitable home detention address was not available at the time of Ms Wilson’s sentencing, it now would appear to be. In saying that, I acknowledge the considerable assistance provided by Mr Petterson, a friend of Ms Wilson’s father, who is willing to make his home available to Ms Wilson for home detention purposes. At some personal inconvenience, no doubt, Mr Petterson attended in Court when Ms Wilson’s appeal was argued before me, and explained his involvement with the family to me. Mr Petterson is to be commended for the support for Ms Wilson he has already provided and is willing to provide in the future. But, as I observed in Court, home detention is only available in certain circumstances and here I cannot conclude that those circumstances exist.
[27] I also note that, were I to allow this appeal and provide an opportunity for the Department of Corrections to confirm that Mr Petterson’s address is a suitable one for home detention, Ms Wilson would still face a reasonable period of time (on the not unusual basis that a, say, two year sentence of imprisonment would be replaced by a 12 month sentence of home detention) subject to the sentence of home detention. That is not an easy sentence, particularly where – as was acknowledged by Mr Hewson would here be appropriate – such a sentence is subject to electronic monitoring. On the other hand, having now spent some five months in prison, Ms Wilson will become eligible for parole within some three months. With Mr Petterson’s address available for her to be released to, I hope that the Parole Board will (subject to any relevant information arising as a result of Ms Wilson’s imprisonment) view favourably her release at the earliest possible date.
“Clifford J”
Solicitors:
Ord Legal Lawyers, Wellington for the appellant.
Crown Solicitor, Palmerston North for the respondent.
3