Wilson v Police

[2019] NZHC 2066

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI 2019-476-0014

[2019] NZHC 2066

BETWEEN

EMILY WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 August 2019
Appearances:	C M Ruane for the Appellant H Bennett for the Respondent
Judgment:	22 August 2019

ORAL JUDGMENT OF JAGOSE J

The judgment was delivered by me on 22 August 2019.

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

C M Ruane, Barrister Christchurch Crown Solicitors, Timaru

WILSON v NEW ZEALAND POLICE [2019] NZHC 2066 [22 August 2019]

[1]    Ms Wilson, you are appealing your sentence of two years and four months’ imprisonment, imposed by Judge A C Roberts in the District Court at Timaru on 4 April 2019.1 The sentence related to a four-month spree of offending, in continuation of your prior conduct. You appeal that sentence as manifestly excessive, and not taking your personal circumstances into account.

Background

[2]    The charging documents are extensive, of offences between 30 August 2018 and 1 January 2019, with a maximum two years’ imprisonment on the driving charges. Other charges attract variously one year, six months, and three month maximum sentences.2 You pleaded guilty to nineteen offences.

[3]    Judge Roberts found you were “quickly developing into a prolific professional thief”. He listed your present charges as well as a number of relevant previous convictions and considered, even when subject to sentence, your offending “was business as usual”. The Judge noted your recent clarity from sobriety, and your high motivation to comply, due to you recognising you had responsibilities to your children.

1      Police v Wilson [2019] NZDC 6370.

2      30 August 2018: theft (Crimes Act 1961, ss 219 and 223(c): one year); 30 August 2018: possession of pipe or other utensil (Misuse of Drugs Act 1975, s 13(1)(a) and (3): one year); 30 August 2018: unlawful possession of police property (Policing Act 2008, s 50: three months); 5 September 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 7 September 2018: careless operation of vehicle (Land Transport Act 1998, s 37: $3,000 fine and disqualification); 7 September 2018: driving under influence of drink or drugs: (Land Transport Act 1998, s 58(1)(b) and (3): two years); 7 September 2018: theft (Crimes Act 1961, ss 219 and 223(c): one year); 16 September 2018: breach conditions of community detention (Sentencing Act 2002, s 69G(a): maximum term of six months’ imprisonment); 30 September 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 3 October 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 6 October 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 13 October 2018: driving while impaired (Land Transport Act 1998, s 57A(1) and (3): two years); 6 November 2018: breach conditions of supervision (Sentencing Act 2002, s 70(a): three months); 6 November 2018: failure to answer bail (Bail Act 2000, s 38(b): one year); 27 November 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 28-30 November 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 12 December 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 16 December 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 28 December 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 1 January 2019: theft (Crimes Act 1961, ss 219 and 223(d): three months); 1 January 2019: possession of pipe or other utensil (Misuse of Drugs Act 1975, s 13(1)(a) and (3): one year); 1 January 2019: possession of controlled drug (methamphetamine) (Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a): six months); 1 January 2019: possession of controlled drug (cannabis) (Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b): three months); 1 January 2019: medicine (diazepam) in non-conforming container (Medicines Act 1981, ss 46 and 78: three months); and 1 January 2019: possession of knife (Summary Offences Act 1981, s 13A: three months).

The Judge also acknowledged your former partner currently is serving a prison sentence, after seriously assaulting you last year.

[4]    The Judge took the driving offending as the lead charges, noting these were your sixth and seventh such charges. In relation to the offending on 7 September 2018, he considered the aggravating factors of thatoffending were your elevated level of intoxication, the fact you had an accident, and your previous convictions, including in January 2012 on two similar charges committed a month apart. The Judge counted the second driving offence as an aggravating factor, committed while the first offence was still before the Court. He considered the offending fell within band two of a tariff case called Samson and adopted a starting point of 18 months, being ten months for the September 2018 offending and a further eight months for the October 2018 offending.3

[5]    The Judge then imposed twelve months for the theft charges, and two months for the breach of community detention, bringing the sentence to 32 months’ imprisonment. He allowed a concession – “but not a full concession”, given the guilty pleas were not early, and the offending was ongoing – by taking four months off the theft charges. The end sentence reached was therefore 28 months’ imprisonment, with concurrent sentences imposed for all other charges. The Judge remitted outstanding fines of $4,900.

Issues on appeal

[6]    Your counsel, Craig Ruane, raises your personal circumstances, not explicitly before Judge Roberts at sentencing. They include your own description of those circumstances, and your personal aspirations for rehabilitation. You say your offending is based in your long-standing abusive relationship with your similarly methamphetamine-addicted former partner. Mr Ruane considers a larger discount, more referable to the totality of your offending, was available in those circumstances. He says the Judge’s “arithmetical approach” has resulted in a “clearly excessive” sentence, which should have been in the range of 20 to 24 months.

3      Samson v Police [2015] NZHC 748.

Approach to appeals against sentence

[7]    I must allow the appeal only if I am satisfied there is an error in the sentence, and a different sentence should be imposed.4 In any other case, I must dismiss the appeal.5 The approach previously taken by courts on sentencing appeals continues to apply;6 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.7 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.8

Discussion

[8]    I acknowledge your more recent recognition of the position your continued offending puts you and your children, and your wish to have that taken into account on appeal. But the Judge had regard for your personal circumstances. Nothing you have amplified now would have been likely to elicit a materially larger discount.9

[9]    The Judge had regard for totality. That is clear from the driving offences alone, each of which supported a 12 to 18 month start point by reference to Samson.10 That is not affected by any error the Judge may have made as to the timing of the two offences coming to Court. The frequency of your thefts was such as justified also a stern sentence, the Judge noting their escalation into likely imprisonment territory. A distinct sentence for your non-compliance also was justified.

[10]   Concurrent sentences were made in relation to fourteen charges, including the drug offending (which the Judge accepted reflected your “dependency issues” and generated your wider offending). Your guilty pleas varied in their timing, diminishing their overall value, and your offending continued unabated.

4      Criminal Procedure Act 2011, s 250(2).

5      Section 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

7      At [33] and [35].

8      Ripia v R [2011] NZCA 101 at [15].

9      Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].

10     Samson v Police, above n 3, at [15]–[16].

[11]   The Judge’s discount, while universally applied, was made taking all those factors into account. Standing back, I see nothing to suggest the Judge’s end sentence is ‘out of range’, or ‘manifestly excessive’.

Result

[12]The appeal is dismissed.

—Jagose J