Wilson v The King
[2024] NZHC 96
•7 February 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2023-419-000103
[2024] NZHC 96
BETWEEN CHARLES KAKENGA WILSON
Appellant
AND
THE KING
Respondent
Hearing: 5 February 2024 (via AVL) Appearances:
M James for the Appellant
S R Hartstone for the Respondent
Judgment:
7 February 2024
JUDGMENT OF TAHANA J
(Appeal against sentence)
This judgment was delivered by me on 7 February 2024 at 3.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor Hamilton Legal, Hamilton G Walsh, Barrister, Hamilton
WILSON v R (Appeal against sentence) [2024] NZHC 96 [7 February 2024]
Introduction
[1] Mr Charles Wilson appeals the decision of Judge R G Marshall1 sentencing him to three years and four months’ imprisonment for five charges of burglary2 and one charge of theft.3
[2] Mr Wilson says the sentence imposed was manifestly excessive and greater credit should have been given for his background and rehabilitation efforts as outlined in a s 27 report, and for his remorse.
[3]The Crown opposes the appeal and says the end sentence is appropriate.
Offending
[4] Mr Wilson was identified as a member of a group responsible for burglaries in the Waikato during September and October 2021 as set out below.
[5] On 10 September 2021, Mr Wilson and associates went to the Black Bull liquor store in Te Kuiti in the evening when it was closed. Mr Wilson used a crowbar to try to remove a padlock on the roller door. With the other person Mr Wilson pulled the roller door free from the rails a short distance, before abandoning their efforts to get into the building.
[6] That same evening (10 September 2021) Mr Wilson and the other party drove to the Caltex service station in Te Awamutu when it was closed. Mr Wilson used a crowbar to lever open an office window and get into the building. Cash was removed and the closed-circuit television (CCTV) disabled while the other party kept a lookout. A security guard disturbed Mr Wilson and they drove away towards Hamilton.
[7] On 13 September 2021, Mr Wilson and another person entered a store at the Base in Hamilton. He took a pair of overalls valued at $25.98.
1 R v Kauhou [2023] NZDC 26002.
2 Crimes Act 1961, s 231. Maximum penalty of 10 years’ imprisonment.
3 Section 219. Maximum penalty of three months’ imprisonment.
[8] On 30 September 2021, at 10:15 am together with his associates, Mr Wilson entered a dwelling in Hamilton through the rear door that was left open. A television and home theatre unit were taken.
[9] On 14 October 2021, at 1:00 am, Mr Wilson and another person went to the Thirsty Liquor store in Huntly. He gained entry through the bottom of a roller door and took a large quantity of tobacco products, the cash register and alcohol.
[10] On 29 October 2021 at 9:00 pm Mr Wilson and his co-defendant were seen outside an electrical premises at Morrinsville. One of the two briefly entered the premises then climbed back over the retaining wall and went back to the vehicle. Police arrived and arrested Mr Wilson.
Approach on appeal
[11] The appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed.
[12] The relevant principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:4
(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;5
(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge — error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;6
(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;7
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 At [27].
6 At [30].
7 At [30].
(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;8 and
(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.9
Decision under appeal
[13] The Judge determined Mr Wilson’s sentence by adopting a starting point of three years and six months’ imprisonment and applying an uplift of three months’ imprisonment for relevant previous convictions.10 The starting point and uplift are not challenged on appeal.
[14] The Judge did not consider that any credit was warranted for remorse but applied a 10 per cent discount for Mr Wilson’s s 27 report arriving at an end sentence of three years and four months’ imprisonment.
Analysis
[15] The key issue on appeal is whether the Judge erred in only applying a 10 per cent discount for the s 27 report and declining to apply any discount for remorse.
[16] Ms James for Mr Wilson says that a 20 percent discount should have been applied having regard to discounts applied in similar circumstances in Poi v R11 and Carr v R12 and for Mr Wilson’s remorse.
[17] The Crown says that Mr Wilson’s circumstances can be distinguished from the circumstances of the offenders in Poi and Carr and that the Judge did not err in
8 At [32]-[33] and [35].
9 At [36] and [40].
10 R v Kauhou, above n 1 at [18].
11 Poi v R [2020] NZCA 312 [Poi].
12 Carr v R [2020] NZCA 357 [Carr].
applying a 10 per cent discount for the s 27 report or declining to provide a discount for remorse.
Section 27 report
[18] Mr Wilson’s s 27 report describes his personal, whānau, community and cultural background. The following are some of the factors identified by the report writer:
(a)Childhood — the report refers to Mr Wilson having been abused and raised in and around “violence, inappropriate behaviours, and gangs.”
(b)Gang affiliation — Mr Wilson describes his gang affiliation as “intergenerational” and says he has been around gangs his whole life.
(c)Cultural disconnectedness — Mr Wilson knows his whakapapa — he is from Ngāti Rangiwewehi of Te Arawa and Ngāti Wairere of Waikato- Tainui. He says he was not really raised around te ao Māori because the gang lifestyle “does not fit the marae and the cultures clash.”
(d)Domestic violence — Mr Wilson has been surrounded by domestic violence and witnessed it throughout his life.
(e)Drug use — Mr Wilson has a history of drug use and the report writer recommends that he be part of the drug treatment unit.
(f)Health and wellbeing — Mr Wilson suffered a stroke on 28 December 2022. He also has type two diabetes.
(g)Whānau — Mr Wilson is a father of three and a koro (grandfather) and his partner described him as a “doting koro.” Mr Wilson also has siblings who are concerned for his health.
[19] The Supreme Court in Berkland v R held that where there is a causative contribution between the offender’s background and the offending, a credit can be
justified.13 Ms James acknowledges that there is no fixed discount for matters set out in a s 27 report but that the discounts applied in Poi and Carr justify a greater discount.
[20] The Crown acknowledges that there is a causative connection between Mr Wilson’s background and offending and says that a discount of 10 per cent is within the range available to the sentencing Judge so there is no error.
[21] The Crown says that Mr Wilson’s circumstances are distinguishable from the circumstances of the offenders in Poi and Carr. While the Crown acknowledges there are some parallels with the circumstances of one of the offenders in Poi who received a 20 per cent discount, that discount reflected the “concrete steps” taken to address the offender’s past trauma. The Crown says Mr Wilson has not provided evidence of his rehabilitative prospects or “concrete steps” he is taking toward rehabilitation.
[22] The pre-sentence report notes that Mr Wilson reported that he had been having counselling on a weekly basis for the past 16 weeks. His mother also confirmed that Mr Wilson had been working with Transform Aotearoa in Putāruru prior to allegedly re-offending.
[23] Mr Wilson’s bail history discloses that he faces aggravated robbery charges arising from 30 September and 14 December 2022 while Mr Wilson was on bail. That occurred while Mr Wilson was working with Transform Aotearoa so suggests that any rehabilitative steps were not effective as at that time.
[24] The s 27 report does not identify any rehabilitative steps taken by Mr Wilson to indicate that the Judge erred in not increasing the discount for Mr Wilson’s rehabilitative prospects.
[25] The circumstances of the other offender in Poi (Mr Poi) who received a 25 per cent discount for his s 27 report can also be distinguished. In addition to a deprived background, Mr Poi suffered from intellectual disabilities which is not a feature of Mr Wilson’s background. I agree with the Crown that the circumstances of the offenders in Poi are distinguishable.
13 Berkland v R [2022] NZSC 143.
[26] Turning to Carr, the Court of Appeal considered that the sentencing Judge had erred in failing to provide any discount for each offender’s respective backgrounds as set out in s 27 reports and considered a 15 per cent discount for each offender was appropriate.14
[27] The Court of Appeal in Carr also acknowledged that the extent of the offending may preclude a greater allowance despite significant matters being disclosed in a s 27 report.15 In making that observation, the Court of Appeal referenced the decision in Poi where discounts of 20 per cent and 25 per cent were given where the two co- offenders were sentenced for one charge of aggravated robbery. In contrast, Mr Carr was sentenced on four charges of aggravated robbery, two of robbery, five of unlawful using or taking a motor vehicle, two of dishonest use of a document, one of demanding with menaces, one of aggravated assault and two of theft.
[28] Here, the sentencing Judge did consider Mr Wilson’s personal background as set out in the s 27 report (including his medical condition) but did not consider that a discount greater than 10 per cent was justified because of the seriousness of the offending. This approach is consistent with the Court of Appeal’s approach in Carr. In these circumstances, I do not consider that the Judge erred in not granting a larger discount for the matters in the s 27 report. The discount applied was within the available range having regard to Mr Wilson’s background and the seriousness of the offending.
Remorse
[29]The sentencing Judge did not apply any discount for remorse noting that:16
I do have a remorse letter but in light of your not guilty pleas at trial that is a little late.
[30] The remorse letter includes Mr Wilson’s wish to apologise to his victims, the courts and his family who were with him at his sentencing.
14 Carr, above n 12 at [65].
15 At [65].
16 R v Kauhou above n 1 at [19].
[31] The Crown says that the Judge did not err in declining to give credit for remorse because “the letter, for all intents and purposes, appears to be superficial and filed for the purpose of seeking further discounts.” That was not the reason given by the sentencing Judge for rejecting the letter of remorse. The express reason was the not- guilty pleas.
[32] The pre-sentence report indicates that Mr Wilson pleaded not guilty because of advice he had received and not because of a lack of remorse:
Mr Wilson was emphatic that he wanted to enter guilty pleas to the burglaries, and a not guilty to the charge of aggravated robbery from the start, but he was advised not to do this and “had to go to trial.”
[33]The not-guilty pleas on their own, do not disclose a lack of genuine remorse.
[34] In Hessell v R the Supreme Court noted that remorse is not necessarily shown simply by pleading guilty and that a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown, sentencing credit should be given.17
[35] Applying the above, when considering whether the Judge erred in declining to provide credit for remorse, it is appropriate to consider all the circumstances including the remorse letter, the contents of the s 27 report and the pre-sentence report, which the Crown submits do not support giving credit for remorse.
[36] In the s 27 report, the report writer refers to Mr Wilson’s inability to feel remorse:
[Mr Wilson] said sadly enough when he was committing crime have had no remorse for his behaviours or why he was doing it, he said the pressures of having to feed my family and finding the money without employment and the jobseekers is nowhere near enough for the finances so I stole to provide, and I stole to pay for my habit it was a big drug need, since I had been smoking meth since 14, and dope from 15 years of age.
With [Mr Wilson’s] explanation here about not being able to feel remorse he also shared that he feels disconnected from himself in times of stress, and when he about to commit crime. His disconnected, and dissociative nature is an unwellness he needs to have assessed by a psychiatrist.
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
[37] The pre-sentence report does not refer to any expressions of remorse although it does explain Mr Wilson’s reason for not pleading guilty and his views on the seriousness of his offending. Mr Wilson expressed his view that his offending was only “intent” for those charges where he entered the building but did not go on to commit any burglary. Mr Wilson’s explanation indicates his focus on downplaying his offending rather than focusing on taking responsibility for it by expressing remorse for those who are impacted by his offending. The remorse letter needs to be viewed in that context.
[38] Having reviewed the content of the s 27 report and the pre-sentence report which do not refer to any genuine remorse on Mr Wilson’s part, I do not consider that the Judge erred in not discounting the sentence because of remorse.
Result
[39]For the reasons set out above, the appeal is dismissed.
Tahana J
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