Wilson v Police - [2013] NZHC 3455

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…

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: [2013] NZHC 3455
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Bonnie Tamara Wilson, the appellant, appealed against her two-year and two-month imprisonment sentence imposed by Judge G M Ross in the District Court at Levin. Ms Wilson pleaded guilty to five charges of burglary, one of theft of a motor car, and one charge of receiving. The primary grounds of appeal were that the sentence was "wrong in principle" and "manifestly excessive." The appeal was argued before Clifford J, who considered whether the District Court Judge's decision to not consider home detention due to the length of the end sentence was an error and whether the sentence was manifestly excessive.

Clifford J held that the District Court Judge could not have taken into account the time Ms Wilson had spent on remand when determining the sentence of imprisonment, as per the clear provisions of the Sentencing Act 2002. The Court of Appeal's decision in R v Vhavha supported this view, which established a two-stage process for a sentence of home detention. In this case, the Judge was required to first decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment and then whether to commute that sentence to home detention. This approach avoided net-widening and ensured that the more lenient sentences imposed at the second stage were reserved for those who would truly otherwise have been imprisoned. Clifford J dismissed the appeal on the "wrong in principle" point.

Regarding the "manifestly excessive" ground of appeal, Clifford J found that the sentence imposed was not excessive, considering the nature of Ms Wilson's offending, which involved a serious spree of burglaries and thefts, causing significant financial and emotional harm to the victims. The term of imprisonment imposed by the Judge was in line with terms of imprisonment imposed for similar offending. Clifford J also noted that the difference in culpability between Ms Wilson and her accomplice Mr Crothers was reflected in their different end sentences, and any failure by the Judge to recognise their different culpability was a matter of degree rather than being sufficiently acute to allow this appeal on the grounds of disparity. Therefore, the appeal was dismissed by Clifford J, who considered this outcome to be required by relevant sentencing law and principles.

However, Clifford J acknowledged the context within which the appeal had been brought on Ms Wilson's behalf, including the possibility of home detention and Ms Wilson's difficult relationship with her mother, which may have contributed to her breach of bail. While a suitable home detention address was now available, Clifford J could not conclude that the circumstances existed for home detention to be an appropriate alternative to imprisonment. Clifford J hoped that the Parole Board would view favourably Ms Wilson's release at the earliest possible date, subject to any relevant information arising from her imprisonment.

Orders