Wilson v R - [2012] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000445 [2012] NZHC 65

MARIO PEPE WILSON
Appellant

v

THE QUEEN

Hearing: 2 February 2012

Appearances: V Heather for the Appellant
N Wilde for the Crown

Judgment: 7 February 2012 at 3:30 PM

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 7 February 2012 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
V Heather: victor@dufflegal.com
N Wilde: nicole.wilde@meredithconnell.co.nz

WILSON V R HC AK CRI 2011-404-000445 7 February 2012

[1] The appellant, Mr Wilson, appeals against a sentence imposed by His Honour

Judge McKegg in the District Court on 8 November 2011.

[2] The appellant had pleaded guilty on 4 August 2011 to a charge of burglary contrary to s 231(1)(a) of the Crimes Act 1961, and a charge of breaking post-release conditions imposed on an earlier sentence. On 8 November 2011, he was sentenced to a term of 15 months’ imprisonment in respect of the burglary offence.

Background Facts

[3] At 9.25 pm on 14 June 2011, the appellant entered a residential dwelling in Takanini through a second-storey bedroom window. A female was asleep in the bedroom. She was woken by the sound of the appellant climbing through the window. She got out of bed, turned on the light, and found the appellant standing in her room. She told him to get out of the house. The appellant then climbed back out of the window, and left the dwelling.

[4] The appellant’s fingerprints were found at the scene, and he was subsequently arrested and charged. He entered a guilty plea on 4 November 2011 to the charge of burglary, and was remanded into custody until 8 November 2011 for sentencing.

[5] The appellant has a lengthy criminal record, including 11 previous convictions for burglary.

District Court Judge’s Decision

[6] Judge McKegg in the District Court at Papakura noted that the offending occurred at night, and that the appellant had chosen to burgle a domestic residence. He noted that there was a woman in the house at the time, that she was alone and that she awoke to find the appellant in her bedroom. The Judge observed that the appellant should not be under any misapprehension as to the seriousness of his offending.

[7] Judge McKegg acknowledged that the appellant did leave the property when he was told to do so, and that he subsequently entered a plea of guilty. He also noted that the appellant had only recently been released from custody after serving a sentence for another recent burglary, and that he was in breach of his release conditions at the time that he committed the offence. He considered that the appellant could be described as a ―spree burglar‖, and that the circumstances of the offending placed the appellant in a situation where a more serious sentence should be imposed.

[8] Judge McKegg adopted a starting point of 20 months’ imprisonment. He deducted five months to…

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 [2012] NZHC 65
Case: [2012] NZHC 65
Decision Date: 7 February 2012

CaseChat Overview and Summary

In the case of Wilson v R, Mario Pepe Wilson appealed against the sentence imposed by His Honour Judge McKegg in the District Court on 8 November 2011. The appellant had pleaded guilty to a charge of burglary and a charge of breaking post-release conditions imposed on an earlier sentence. On 8 November 2011, the appellant was sentenced to a term of 15 months’ imprisonment in respect of the burglary offence. The legal issues for the court to determine were whether the sentence imposed by the District Court Judge was manifestly excessive, inadequate or inappropriate. The court considered the circumstances of the offending, the appellant’s criminal history, and the need for deterrence and community protection. The court found that the end sentence imposed by Judge McKegg was not manifestly excessive and dismissed the appeal. The court acknowledged that the starting point adopted by the District Court Judge was a little high, but an uplift was clearly necessary due to the appellant’s appalling criminal history. The end sentence imposed by the Judge was modest and took into account the need for deterrence and community protection. The court found that the Judge was right to impose such a sentence and dismissed the appeal.

Orders