Wilson v Police - [2012] NZHC 2503

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-442-18 [2012] NZHC 2503

BETWEEN CHARLES ANDREW WAKAWE WILSON
Appellant

ANDPOLICE Respondent

Hearing: 25 September 2012

Counsel: K W Jones for Appellant
M A O'Donoghue for Respondent

Judgment: 26 September 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] On 26 May 2012 Mr Wilson assaulted his partner. She was pregnant at the time. He punched her face, leaving a cut to her lip and swelling to her face. Mr Wilson’s partner reported the assault to the police. On 6 June 2012 Mr Wilson texted his partner asking to see their son before going to jail. She agreed to come out to the Maitai Motor Camp, where he was staying, on the basis that there be no arguing and no fighting. But when she got there an argument broke out. Mr Wilson accused his partner of being a “nark” in going to the police. She tried to get out of the car but he struck her face and grabbed her around the throat, to the point where she felt unable to breathe. She bit Mr Wilson and eventually he desisted and walked off. The police were called. When he arrived at the police station he sounded off at large, threatening to kill both his partner and himself. While in custody he wrote a letter to his small son, and in doing so breached a protection order.

[2] Mr Wilson has 58 previous convictions. Most are for petty dishonesty and motoring offences. Two points are notable. The first is that since 2003 his record

WILSON v POLICE HC NEL CRI 2012-442-18 [26 September 2012]

has been relatively clean, with two motoring offences and one antisocial behaviour offence only in that time. Secondly, and more importantly, there is nothing in Mr Wilson’s record showing any propensity to violence. He has only one previous conviction for violence (assault with intent to rob, in October 1995).

District Court decision

[3] Mr Wilson pleaded guilty to charges of male assaults female, assault with intent to injure (the 6 June 2012 incident), threatening to kill and breach of a protection order.

[4] The sentencing Judge grouped the charges together, taking the assault with intent to injure charge as the lead offence, but taking all the offending together as a single “job lot”. A start point of 15 months’ imprisonment was adopted. The full 25 per cent discount available for an early guilty plea was given, reducing the period to
11 months. The Judge decided that he could not give any further discount for remorse, finding the expression of regret by Mr Wilson at sentencing to be self- serving.

Appeal

[5] Mr Wilson now appeals on the basis that the sentence is manifestly excessive. For Mr Wilson, Mr Wayne Jones submits that while the charge was serious ones, they were not reflective of any propensity for violence towards women or others for that matter. The Court would be entitled to infer that the accused’s behaviour…

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: [2012] NZHC 2503
Decision Date: 26 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Charles Andrew Wakawe Wilson, appealed against the sentence imposed by the District Court. Mr. Wilson had pleaded guilty to charges of assaulting his partner, who was pregnant at the time, and breaching a protection order. The District Court sentenced Mr. Wilson to 11 months’ imprisonment after discounting the starting point for his early guilty plea but finding no remorse. Mr. Wilson argued that the sentence was manifestly excessive, given his clean record for the past nine years and the lack of any propensity for violence.

The court considered whether the District Court judge had erred in principle or conscience by not referring to a similar case, R v Richardson, or in not adequately considering Mr. Wilson's lack of propensity for violence. The High Court found that the District Court judge's starting point of 15 months’ imprisonment for the totality of the offending would likely have been lower had he been aware of the R v Richardson case. The court also noted that Mr. Wilson had no propensity for violence and had largely behaved himself for the past nine years. The High Court concluded that the sentence should have been one of nine months’ imprisonment, considering Mr. Wilson's out-of-character violence and his early guilty plea.

The appeal was allowed, and the sentence of 11 months’ imprisonment was set aside. A sentence of nine months’ imprisonment was substituted therefor.

Orders