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…

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: [2019] NZHC 1110
Decision Date: 20 May 2019

CaseChat Overview and Summary

In this case, Rikki Aaron Wilson appealed against a sentence imposed by the Whanganui District Court. He had been sentenced to 11 months and one week in prison for breaching a protection order and breaching the conditions of his release. He argued that the starting point of 14 months was too high and that the final sentence was manifestly excessive. The appeal was heard by Mallon J in the High Court at Whanganui. The court had to consider whether the starting point adopted by the District Court was appropriate and whether the final sentence was manifestly excessive.

The court considered the appellant's argument that the starting point was too high, but found that the District Court had appropriately taken into account the history of violence against the complainant and the persistent breaches of the protection order. The court also found that a starting point of 15 months was appropriate, given the seriousness of the offending and the appellant's criminal history. The court considered that the appellant's breaches of the protection order were not merely for contact with his child, but were intended to intimidate and control the complainant. The court rejected the argument that the starting point was too high and dismissed the appeal.

The court upheld the sentence imposed by the District Court, finding that it was appropriate and not manifestly excessive. The court found that the District Court had appropriately considered the aggravating factors, including the appellant's history of violence and the serious impact of his offending on the complainant. The court also found that the conditions imposed on the appellant's sentence were appropriate to protect the complainant and to deter further offending. The appeal was dismissed.

Orders