Wilson v Police

[2019] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2019-483-1

[2019] NZHC 1110

BETWEEN

RIKKI AARON WILSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 May 2019

Counsel:

E C Copeland for Appellant

C B Wilkinson-Smith for Respondent

Judgment:

20 May 2019

JUDGMENT OF MALLON J

Introduction

[1]    Rikki Wilson pleaded guilty to two charges of breaching a protection order and one charge of breaching release conditions.1 He was sentenced in the Whanganui District Court on 4 March 2019 to imprisonment for 11 months and one week. The sentence was also subject to release conditions that included a condition preventing Mr Wilson from going within a mile of the victim’s address without written permission from a probation officer following consultation with the complainant.

[2]    Mr Wilson appeals against his sentence. He contends the starting point adopted by the District Court was too high and led to an end sentence that was manifestly excessive.

[3]    The sentence appeal also contended that GPS monitoring of the release condition was unlawfully imposed. This issue arose because Mr Wilson, who was

1      Police v Wilson [2019] NZDC 4087 per Judge Crayton. Domestic Violence Act 1995, s 49 (breaching protecting order); maximum penalty: three years’ imprisonment. Sentencing Act 2002, s 96 (breaching release condition); maximum penalty: one years’ imprisonment or a $2,000 fine.

WILSON v NEW ZEALAND POLICE [2019] NZHC 1110 [20 May 2019]

about to be released from his sentence, had apparently been told that there was to be GPS monitoring of his movements. However, it is clear that the Judge did not impose GPS monitoring and accordingly this issue falls away.

Summary of offending

[4]    Mr Wilson and the complainant commenced a relationship sometime around August 2016. The complainant became pregnant with their child shortly thereafter. Mr Wilson was physically violent towards the complainant during their relationship. In May 2017 he was sentenced to 18 months’ imprisonment for a range of offending, including common assault (family violence) on the complainant.2 In November 2017, while Mr Wilson was in prison, the complainant obtained a Protection Order against him.

[5]    On 28 March 2018, Mr Wilson was sentenced to four months’ imprisonment for breaching the Protection Order on 7 and 8 of January 2018. On the first of those occasions he went to the complainant’s address, left after being told to leave, returned, knocked on her bedroom window at 11.30 pm when she awoke and told him to leave again. The next morning he left what the sentencing Judge described as “nasty messages” on her phone.3

[6]    Mr Wilson was released from prison and soon after he breached the Protection Order again on 3 and 15 May 2018. On these occasions he sent multiple text messages. They included a threat to kill the complainant. This gave rise to convictions for threatening to kill her as well as for the Protection Order breaches. The sentencing did not take place until 16 November 2018. At that time Mr Wilson was sentenced to 12 months’ imprisonment, with a special release condition that he was not to associate with or contact the complainant without the prior written approval of a Probation Officer.

2      Police v Wilson [2017] NZDC 10971. He was sentenced on two charges of common assault (one of them family violence), possessing an offensive weapon, unlawfully in building, two charges of driving while disqualified (3rd of subsequent), disorderly behaviour, possession of methamphetamine, recklessly operating a motor vehicle, dangerous driving, failing to stop, and two charges of breaching release conditions.

3      Police v Wilson [2018] NZDC 6151 at [2].

[7]    That sentence equated to  time  served.  The  complainant  was  advised  on 16 November 2018 that Mr Wilson had been released from jail with the special release condition. The following evening, at 7.30 pm, Mr Wilson called the complainant from an unknown number and asked, “how’s my boy doing”. The complainant recognised Mr Wilson’s voice and reminded him about the Protection Order and that he was not to call her again. Mr Wilson said “take care” and then hung up. On 26 November 2018, Mr Wilson sent a text message to the complainant from a number she did not recognise saying, “Can I ask you a question”. The complainant replied asking who it was and was told, “If I say I would be incriminated, may I ask a question please”. The complainant did not respond further, and Mr Wilson sent three further short messages with the last saying, “I love you”.

[8]    The victim impact statement sets out the history of the relationship between the complainant and Mr Wilson and his history of physically and psychologically abusing her. The complainant notes that Mr Wilson has been imprisoned on three separate occasions for offending against her and that his pattern is to contact her almost immediately upon release. She describes the heavy toll she is under from the anxiety, distress and dread for her and her child’s safety that Mr Wilson’s continued actions have caused.

Personal circumstances

[9]    Mr Wilson is 47 years old. In addition to the above offending against the complainant, he has two convictions for breaching a protection order and two for common assaults (family violence). These convictions were in 2014 and related to a different complainant. He has multiple other convictions for a range of other offending. They include possessing a firearm without a licence, breaching release conditions and other assaults. They also include driving, dishonesty and drug offending. He has been sentenced to imprisonment on multiple occasions.

District Court sentencing

[10]The District Court Judge considered the aggravating factors were:

(a)Mr Wilson had repeatedly breached the Protection Order. This was the fifth and sixth breach of protection order against the same complainant within just over a year of it being put in place. This offending had been pretty much constant when Mr Wilson was not in prison and it had previously included threats of violence.

(b)The offending involved significant harm to the complainant. Although the present charges did not involve physical violence, it was an act of control over the complainant, intended to indicate that Mr Wilson could not be prevented from contacting the complainant.

[11]   The Judge considered a starting point of 14 months’ imprisonment was appropriate for the two Protection Order breaches and the breach of release conditions. As I read the Judge’s remarks, this took into account the above factors, as well as  Mr Wilson’s other breaches of protection orders against a different complainant.4 The Judge added an uplift of one month for the fact Mr Wilson was still on sentence (release conditions) for the same offending.5 He then applied a 25 per cent discount for Mr Wilson’s guilty plea. This meant an end sentence of eleven months and one week’s imprisonment.

[12]   Home detention was rejected because of Mr Wilson’s lack of impulse control and his poor compliance with sentence release conditions. The conditions imposed on the sentence included that Mr Wilson could not contact the complainant and was not to enter or go within one mile of the complainant’s address without the written permission of the probation officer after consultation with the complainant.

Approach on appeal

[13]   First appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011. An appeal must be allowed if the Court is satisfied, for any reason, that there is an error in the sentence imposed on conviction, and a different sentence ought

4      Police v Wilson, above n 1, at [15]-[16]. The Judge said that the starting point took into account Mr Wilson’s history. He noted this included other serious violence but said he was not including an uplift for “that other aspect of your offending”.

5 At [17].

to be imposed. In considering whether there has been an error, the test of whether the sentence is “manifestly excessive” continues to be instructive.6 In determining that, the focus is on the end sentence rather than the process by which it is reached.7

Analysis

[14]   One of the appeal grounds had been that the Judge had erroneously considered that Mr Wilson had assaulted the same complainant for which he was sentenced in May 2017. The sentencing remarks for the sentencing on 24 May 2017 have been obtained. It is apparent from those remarks that his offending at that time included an assault on the complainant, who at that time was pregnant with their child. This ground of appeal, like the GPS monitoring point, therefore falls away.

[15]   Counsel for Mr Wilson submits that the starting point adopted in the District Court was too high. He emphasises that the breaches occurred because Mr Wilson wanted contact with his 18 month old son (Mr Wilson said he thought the complainant and their son were intending to leave the country) and the contact was by telephone rather than in person and was friendly in tone.

[16]   In support of this submission, reliance is placed principally on G v Police.8 There the High Court Judge considered a starting point of eight or nine months was appropriate for an offender who was being sentenced for his fourth and fifth protection order against the same person. The breaches involved sending letters and concerned difficulties with access to their children.

[17]   That case is not on all fours with the present. None of the protection order breaches had involved threats of violence. The Judge characterised the letters the defendant had sent as sad and remorseful rather than threatening. The complainant was not fearful of the defendant to the extent that she did not want to have anything to do with him at all. The defendant’s conviction history was also considerably less extensive than that of Mr Wilson and included a break of offending between 2009 and 2015. The defendant had also relocated to a place away from the complainant. The

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

7 At [8].

8      G v Police [2019] NZHC 411.

Judge considered the defendant had “gained new insight into his offending and [was] less likely to re-offend in the future”.9

[18]   The factors the Judge relied on to bring the starting point down from the     15 month period adopted by the District Court are not present in this case.10 Mr Wilson has persistently breached the Protection Order. His breaches have occurred soon after on his release from prison. He has an extensive background of offending which shows a disregard of the law. He has been violent to the complainant and she is fearful of him. The fact that he may have wanted contact with his child provided no excuse for his actions. There were proper channels for this contact and he would have used them, rather than contacting the complainant, if he had any inclination to rehabilitate.

[19]   I consider a 15 month imprisonment sentence, before the discount for a guilty plea, was within range taking all the aggravating features of the offending and the personal aggravating features of the defendant into account. I note in particular the Court of Appeal decision in Anderson v R where an 18 month starting point was upheld.11 This case does not have the escalating level of seriousness in the nature of the breaches as that case did.  But it has  other  serious features  which  warrant the 15 months taken. Of particular concern is the background of violence (threats and actual violence) and the immediacy of the contact on release from prison. A deterrent sentence was necessary.

Result

[20]The appeal is dismissed.

Mallon J

9 At [37].

10 I consider it is better to focus on the 15 month period as I was a little unclear about some of the Judge’s remarks as to what was being taken into account and what was not. I also consider an uplift for the fact that the offending was committed while subject to release conditions risked double counting for the fact that the 14 month starting point included the charge of breaching release conditions.

11 Anderson v R [2016] NZCA 346 at [26]-[27].