Wilson v The Queen - [2015] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA530/2014
[2015] NZCA 235

BETWEEN	CHARLES KAKENGA WILSON Appellant
AND	THE QUEEN Respondent

Hearing:	8 June 2015
Court:	Harrison, Andrews, Gilbert JJ
Counsel:	C D Bean for Appellant K J Cooper for Respondent
Judgment:	11 June 2015 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following trial by jury in the Hamilton District Court, Charles Wilson was found guilty of two charges of burglary and 11 charges of receiving stolen property. Judge Burnett convicted and sentenced Mr Wilson to four years and eight months’ imprisonment and ordered him to serve a minimum of half of this term.[1] The Judge arrived at this sentence by adopting a starting point of four years and six months’ imprisonment, applying an uplift of nine months for personal aggravating factors and a reduction of six months for time spent on electronically monitored bail.[2] The Judge also ordered Mr Wilson to pay reparation in the sum of $7,851.12.
[1]R v Wilson DC Hamilton CRI-2012-019-6295, 5 September 2014.
[2]On this basis the end sentence should have been four years and nine months’ imprisonment. Mr Wilson has received a small benefit from this mathematical error.
Mr Wilson does not challenge the base starting point adopted by the Judge but appeals against his sentence on the following grounds:
(a)The uplift was too high.
(b)Remorse should have been taken into account as a mitigating factor.
(c)A minimum period of imprisonment should not have been imposed.
(d)The order for reparation should not have been made.

Was the uplift too high?

At the time of sentencing, Mr Wilson had 55 prior convictions, 34 of which were for offences involving dishonesty and eight for non compliance with Court orders. Mr Bean acknowledges that an uplift was appropriate to take account of Mr Wilson’s prior convictions. He submits that the uplift should have been no higher than six months’ imprisonment for this.
Mr Bean’s submission that the uplift should have been restricted to six months overlooks that this was not the only aggravating factor that the Judge took into account. The Judge also took into account, as she was required to do, that Mr Wilson’s current offending commenced just two days after he was released from a sentence of home detention for an earlier burglary and while he was still subject to post release conditions.[3]
[3]At [21].
The overall uplift of nine months’ imprisonment to take account of these two aggravating factors was plainly within the range of the Judge’s sentencing discretion and there is no basis upon which we could interfere with it.

Should an allowance have been made for remorse?

Counsel did not suggest at the time of sentencing that remorse was a factor that should be taken into account in the sentencing exercise. Mr Bean nevertheless submits that the Judge was wrong not to allow a discount for remorse. He relies on comments in the pre-sentence report that Mr…

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.

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Details

Case: [2015] NZCA 235
Decision Date: 11 June 2015 at 10.15 am

CaseChat Overview and Summary

The case of Charles Kakenga Wilson v The Queen involves an appeal by the appellant, Charles Wilson, against his conviction and sentence for burglary and receiving stolen property. The case was heard by the Court of Appeal of New Zealand, with Harrison, Andrews, and Gilbert JJ presiding. The appellant was found guilty of two charges of burglary and 11 charges of receiving stolen property by the Hamilton District Court. The appellant was sentenced to four years and eight months’ imprisonment with a minimum of half to be served, and was also ordered to pay reparation in the sum of $7,851.12. The appellant's appeal against the sentence was based on four grounds: the uplift was too high, remorse should have been taken into account as a mitigating factor, a minimum period of imprisonment should not have been imposed, and the order for reparation should not have been made. The Court of Appeal found that the overall uplift of nine months' imprisonment, which took into account the appellant's prior convictions and the fact that his current offending commenced just two days after he was released from a sentence of home detention, was within the range of the Judge's sentencing discretion. The Court also found that the Judge was not wrong in not allowing a discount for remorse, as the appellant did not plead guilty and had made no attempt to compensate his victims. The Court was justified in imposing a minimum period of imprisonment, as the appellant's offending was serious and involved a significant commercial enterprise trading in stolen goods. Finally, the Court found that the order for reparation was appropriate, as the appellant was employed and had gained from his offending, and there was no evidence to indicate that the presumption in favour of reparation was displaced. The appeal was dismissed.

Orders