Wilson v R - [2010] NZCA 360

IN THE COURT OF APPEAL OF NEW ZEALAND
CA577/2009
[2010] NZCA 360
BETWEENGUY NICHOLAS WILSON

Appellant

ANDTHE QUEEN

Respondent

Hearing:24 June 2010

Court:Chambers, O'Regan and Randerson JJ
Counsel:M Pecotic for Appellant

H W Ebersohn and B J Horsley for Respondent

Judgment:9 August 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of preventive detention on the charge of assault with intent to rob is quashed.
CA sentence of eight years imprisonment is substituted on that charge with a minimum period of imprisonment of five years.

____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
[1]        The appellant was convicted after jury trial on one count of murder and one count of assault with intent to rob. He was sentenced by Winkelmann J to life imprisonment on the charge of murder and preventive detention on the charge of assault with intent to rob.[1] In each case, a minimum period of imprisonment of 17 years was imposed.
[1]      R v Wilson HC Auckland CRI-2006-092-16632, 19 August 2009.
[2]        Initially, Mr Wilson appealed against both conviction and sentence. However, the appeal against conviction has not been advanced and his appeal against sentence is limited to the sentence imposed on the charge of assault with intent to rob. He accepts the sentence imposed on the murder charge.
[3]        Counsel on each side accepted that, to an extent, the appeal against sentence on the charge of assault with intent to rob was academic given the sentence imposed on the murder charge. However, the appellant is entitled to challenge his sentence and we proceed accordingly.
The facts
[4]        The facts are not in dispute. The appellant and two co-offenders went to the male victim’s address at night with the intent of using stand-over tactics to commit a robbery. Their target was money and possibly drugs. The appellant had taken steps to disguise himself, wore gloves and was armed with a knife. He took with him a roll of duct tape with the intention of binding the victim. When they arrived, the male victim, his wife and young daughter were at home. The appellant forced his way in. The victim’s wife was able to run upstairs and locked herself in her daughter’s bedroom from where she was able to call the police on her mobile phone.
[5]        A struggle took place downstairs with the male victim. The Judge found that the appellant took the lead in the struggle. The victim fought back but was subdued after an intense fight. He was then bound with duct tape with his arms behind his back. His eyes and mouth were taped with the same material. During the struggle he was bruised and was stabbed once in the arm.
[6]        During the altercation, the victim ceased breathing and died of asphyxia. The Judge found as a fact that the appellant had applied pressure to the victim’s chest thereby restricting his neck and airflow. While the victim was left dead or dying on the…

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.

Continue reading Wilson v R

Details

AGLC: Wilson v R [2010] NZCA 360
Case: [2010] NZCA 360
Decision Date: 9 August 2010

CaseChat Overview and Summary

The case of Wilson v R concerns an appeal against the sentence imposed on Guy Nicholas Wilson for his conviction on charges of murder and assault with intent to rob. The Court of Appeal of New Zealand reviewed the sentence imposed by the High Court and found it to be manifestly excessive. The appellant had been sentenced to life imprisonment for murder and preventive detention for assault with intent to rob, with a minimum period of imprisonment of 17 years imposed on both charges.

The primary legal issue before the Court was whether the sentence of preventive detention imposed on the charge of assault with intent to rob was appropriate. The Court considered the principle of totality in sentencing, the appellant's history of offending, and the nature of the present offending. The Court found that while there was jurisdiction to impose a sentence of preventive detention, the case for doing so was not compelling given the sentence of life imprisonment with a minimum 17-year term imposed on the murder charge.

The Court of Appeal concluded that a lengthy determinate sentence on the charge of assault with intent to rob was sufficient to protect the community. The Court determined that an eight-year sentence of imprisonment with a minimum term of five years was appropriate on the charge of assault with intent to rob. The appeal was allowed, and the sentence of preventive detention was quashed, replaced with an eight-year sentence of imprisonment with a minimum term of five years on the charge of assault with intent to rob.

Orders