Wilson v The King - [2024] NZHC 96

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…

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 The King

Details

AGLC: Wilson v The King [2024] NZHC 96
Case: [2024] NZHC 96
Decision Date: 7 February 2024

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, heard an appeal by Charles Kakenga Wilson against his sentence for burglary and theft. The appellant argued that the sentence of three years and four months was manifestly excessive, considering his background and efforts at rehabilitation, as well as his expressed remorse. The Crown opposed the appeal, maintaining that the sentence was appropriate. The court was required to decide whether the Judge erred in the discount applied for the appellant's background and remorse. The court found that the Judge did not err in applying a 10 per cent discount for the s 27 report or in declining to provide a discount for remorse. The reasoning was that the appellant's circumstances could be distinguished from those in similar cases, and the seriousness of the offending precluded a greater allowance. Furthermore, the evidence did not support genuine remorse on the part of the appellant.

The appeal was dismissed, and the original sentence stood. The court held that the Judge had correctly applied the principles of sentencing and had not erred in the discount applied for the appellant's background and remorse. The court emphasised that the focus was on whether the end sentence was within the appropriate range, not the process by which that sentence was reached. In this case, the court was satisfied that the sentence was within the appropriate range, and the appeal was dismissed accordingly.

Orders