Wilson v Police HC Napier CRI-2011-441-000013

[2011] NZHC 1010

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-000013

BETWEEN  JOHN ZACHARY WILSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 July 2011

Appearances: M J Phelps for Appellant

J D Lucas for Respondent

Judgment:      11 July 2011 at 5:00 PM

JUDGMENT OF COURTNEY J

Solicitors:           Elvidge & Partners, P O Box 609, Napier 4140

Fax: [phone] – J D Lucas

Counsel:             M J Phelps, C/o Tony Snell Barrister, 305 Market Street South, Hastings 4122

Fax: [phone]

WILSON V NZ POLICE HC NAP CRI-2011-441-000013 11 July 2011

[1]      Mr Wilson appeals his conviction on charges of domestic violence, burglary, breach of community work and other minor charges.   He was sentenced in the District Court at Hastings to cumulative sentences of 18 months imprisonment for two  burglaries  and  13½  months  for  a  number  of  domestic  violence  offences. Mr Wilson’s ground of appeal is that the burglary sentence was manifestly excessive or, alternatively the total of the cumulative sentences of 31½ months imprisonment is manifestly excessive and the Judge failed to take into account the totality principle under s 85(2) of the Sentencing Act 2002.

[2]      The burglaries were both opportunistic burglaries of private residences.  The first burglary occurred in January 2011 when Mr Wilson was on electronic bail. Electronic equipment, clothing and household effects were taken though no value was available for those goods at the time of sentencing.  The January 2011 burglary led to the discovery of an earlier burglary in August 2010 where goods of a similar nature were taken.

[3]      Judge Mackintosh took a starting point of 12 months and imposed an uplift of six months to reflect the fact that there were two similar offences.  She then imposed a further uplift of six months to reflect the fact that Mr Wilson committed those offences while on bail and the fact of his previous conviction for aggravated robbery. That resulted in a sentence of two years imprisonment for credit for the guilty plea which was put at 25% and resulted in a final sentence on the burglary charges of 18 months imprisonment.

[4]      Mr Phelps, for Mr Wilson, submitted that the initial starting point of 12 months was appropriate as was the first uplift to 18 months to reflect the totality of the offending.  However he argued that the second uplift intending to reflect the fact that the offences were committed on bail and the previous convictions was excessive and (at least in respect of the offending while on bail) already reflected in the first uplift.

[5]      I consider that the Judge’s approach to the starting point and uplifts was well within the range available to her.  The offending itself (leaving aside entirely the fact that it was committed while on bail) justified a term of 18 months imprisonment.

The Judge properly reflected the aggravating feature of offending on bail and the previous history in a further uplift.  Given that both of the burglaries were committed while on bail and the fact that Mr Wilson has a substantial previous history including aggravated robbery, theft and wilful damage, an uplift of a further six months could not be regarded as manifestly excessive. The first ground of appeal therefore fails.

[6]      Mr Phelps argued, in the alternative, that the totality of the offending did not justify a final effective sentence of 31½ months.

[7]      There  is  no  argument  taken  with  the  Judge’s  sentence  on  the  domestic violence charges per se.  These involved several separate incidents of abuse against his partner.  They were represented in four male assaults female charges and eight charges  of  breach  of  protection  orders.    Some of  the  offending  occurred  while Mr Wilson was already serving a non-custodial sentence for other matters and he had previous convictions for similar offending.   The Judge took a starting point of 12 months and uplifted that for his previous convictions, resulting in a sentence of 18 months reduced by 25% to 13½ months imprisonment.

[8]      Mr Phelps submitted that the Judge made no express reference to the totality principle and that the final cumulative sentence of 31½ months was excessive and out of proportion  to  the gravity of the overall  offending.    He submitted that  a sentence in the range of 24-27 months would have been appropriate, particularly given the age of the appellant (20 years old at the time of the offending).\

[9]      The offending for which Mr Wilson was imprisoned related to offences in January, August and October 2010 and January 2011.  While neither the domestic violence nor the burglary offences are at the worst end of the continuum, nor were they minor.   There were significant aggravating features in the form of offending while on bail and the existence of previous convictions.  Realistically, as Mr Phelps’ submissions seemed to convey, the only fact that might give reason for pause in relation to the totality of the sentence is Mr Wilson’s age.  It is apparent that he has had a very troubled past and is completely unable to manage his anger.   I do not consider that the Judge made an error in imposing the final sentence that she did.  It was open to her and, although she did not specifically consider the totality of the

term finally imposed, I cannot say that the end sentence was manifestly excessive given the range of offending in terms of both nature and duration.

[10]     The appeal is dismissed.

P Courtney J