Wilson v R - [2015] NZHC 298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000247 [2015] NZHC 298

BETWEEN
TUWAIRUA WILSON

Appellant

AND

THE QUEEN Respondent

Hearing: 23 February 2015

Appearances:

D Nairn for the Appellant
M Hammer for the Crown

Judgment:

27 February 2015

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 27 February 2015 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

WILSON v R [2015] NZHC 298 [27 February 2015]

Introduction

[1] The appellant, Mr Wilson, appeals a sentence of six months’ imprisonment

imposed on him by Judge G T Winter in the District Court at Manukau on 29 July

2014.The sentence was imposed in respect of the following charges: (a) Burglary, pursuant to s 231 of the Crimes Act 1961;
(b) Unlawfully getting into a motor vehicle, pursuant to s 226(2) of the

Crimes Act;

(c) Unlawfully being in an enclosed yard, pursuant to s 29(1)(b) of the

Summary Offences Act 1981.

Judge Winter reserved leave to Mr Wilson to apply for home detention. [2] At the time of the offending, Mr Wilson was 17 years of age.
[3] The sentence was imposed following a sentence indication given on 16 June

2014 also by Judge Winter. At that stage, he indicated a starting point of five months’ imprisonment in respect of the burglary and an uplift of one month in respect of the two other charges, giving a total sentence of six months’ imprisonment. He further indicated that there would be a discount for youth and other circumstances, and that he would settle on a sentence of imprisonment of four months. He recorded that this clearly enabled him to consider alternatives to imprisonment as being the least restrictive option for somebody of Mr Wilson’s age. He stated as follows:

I am prepared to indicate a low-level sentence of community detention, a mid-to-higher level sentence of community work and a sufficient period of supervision to ensure that he can get the benefits of programmes that might break his association with others that are clearly leading him into crime.

[4] Mr Wilson accepted the sentence and entered guilty pleas to the three charges on the same day.

Background facts

[5] On 3 November 2013, Mr Wilson and two co-offenders forced entry into a residential dwelling in Frank Nobel Drive. They removed various household and electronic items. They were seen by neighbours when they were running from the house and loading the items into a vehicle. The vehicle had been stolen earlier in the day by one of Mr Wilson’s co-offenders. The police were called.

[6] Following the arrival of the police, Mr Wilson ran from the scene. He was observed hiding in a neighbouring yard. The occupier of the house to which the yard was attached apprehended Mr Wilson, and detained him until the police arrived. When he was being taken into custody by the police, Mr Wilson threatened the neighbour, and said that he would return to rob his…

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 [2015] NZHC 298
Case: [2015] NZHC 298
Decision Date: 27 February 2015

CaseChat Overview and Summary

Tuwairua Wilson appeals a six-month imprisonment sentence imposed by Judge G T Winter in the District Court at Manukau on 29 July 2014. The sentence was for burglary, unlawfully getting into a motor vehicle, and unlawfully being in an enclosed yard. Judge Winter had previously indicated a sentence of four months’ imprisonment. Wilson argues that the sentence was not commensurate with the earlier indication, and that the judge erred in imposing a sentence of imprisonment instead of a community-based sentence. The appeal hinges on whether the sentence was an error and, if so, whether a different sentence should be imposed.

The court examined whether the sentence indication was binding on Judge Winter. Section 116 of the Criminal Procedure Act provides that a sentence indication is binding unless new information materially affects the basis on which it was given. The pre-sentence report revealed no available address for community detention, which materially affected the sentence indication. Judge Winter did not discuss this new information or offer Wilson the option to withdraw his guilty plea. The court found that Judge Winter erred in not discussing the new information and in not offering Wilson the option to withdraw his plea.

The court also considered whether the starting point of 10 months for the burglary was appropriate. The Crown accepted that the non-availability of an address was personal to Wilson and did not affect the gravity of his offending. The court found that the starting point adopted by Judge Winter was lenient and within the available range for burglary of a residential home. The court concluded that the sentence of six months’ imprisonment was appropriate given the circumstances.

The appeal was dismissed, and the original sentence was upheld.

Orders