Wilton v Police HC Wellington CRI 2010-485-57

[2010] NZHC 2045

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-000057

BETWEEN  ZACHARIAH JAMES WILTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 September 2010

Counsel:         J Miller and C L Hollingsworth for the Appellant

J A Ongley for the Respondent

Judgment:      29 September 2010

JUDGMENT OF WILD J

[1]      Mr Wilton applies for leave to appeal out of time against a sentence of two years three months imprisonment imposed on him by Judge Barry in the Wellington District Court on 19 February.

[2]      The nub of the appeal (assuming leave is granted) is that what has befallen Mr Wilton in prison warrants the Court reconsidering his sentence.   Mr Miller contends that the sentence of imprisonment imposed on Mr Wilton should be quashed,  and  a sentence of  home  detention  substituted.    Obviously,  that  would require the Court to accept that a sentence of two years imprisonment or less is now appropriate.

[3]      Judge Barry sentenced Mr Wilton after he pleaded guilty to one charge of aggravated burglary and another of setting fire to a building, knowing that danger to life was likely to ensue.   Both charges were laid indictably and carry maximum

sentences of 14 years imprisonment.

WILTON V NEW ZEALAND POLICE HC WN CRI 2010-485-000057  29 September 2010

[4]      The offending I am concerned with occurred on 13 November 2009.  At the time, Mr Wilton was living rough in Wellington, seemingly dossing down with friends and flitting from one casual relationship to another.   He was drinking excessively and using illicit drugs.  His relationship with a young woman called ‘A’ had ended in violence a short time before; Mr Wilton was convicted of assaulting A three times with intent to injure her, and on an associated charge of intentional damage.  The latter charge resulted from Mr Wilton pouring mineral turps over A’s television and trying to set fire to it.  Judge Davidson had sentenced Mr Wilton on 6

November 2009 to intensive supervision for 18 months, with special conditions relating to drug and alcohol assessment and counselling, and 100 hours community work. That was just one week before the offending with which I am concerned.

[5]      After ending with A, Mr Wilton had taken up with another young woman,

‘B’.  On 12 November B told Mr Wilton that she was ending their relationship.  Mr Wilton blamed A and her new partner for this.   He armed himself with a kitchen knife and told B that he was going to find A and her new partner.  B was able to alert A and her partner that Mr Wilton was on the way.  They lived in one of six flats in an old three storeyed, weatherboard house on The Terrace.

[6]      When no-one answered the door, Mr Wilton smashed a window to get into the building.  A and her partner heard this and fled down a fire escape.  Mr Wilton then ransacked A’s flat, throwing belongings about and damaging other property with his knife.  He then turned on a stove and threw clothing and other belongings on the stove until they were alight, when he spread them around the flat under beds and curtains where they would be likely to start fires.

[7]      The Police then arrived and cleared the building of its other occupants.  Mr Wilton escaped from an upstairs window, but was apprehended by the Police shortly afterwards in central Wellington.

[8]      When the Police spoke to him, Mr Wilton said he was disappointed that nobody had died, because he had wanted to hurt A and her partner.

[9]      In his sentencing remarks Judge Barry referred to the consequences, potential as well as actual, of Mr Wilton’s offending.   First there was the obvious risk of injury or loss of life to the occupants of the six flats in the property Mr Wilton set fire to.   Second, there was the loss caused to its owner.   The fire rendered the property uninhabitable for at least six months, with loss of rent estimated at in excess of $26,000.  The cost of reinstatement was estimated at around $307,000, but there were issues as to whether reinstatement was possible without complying with current building requirements, which might raise costs to over a million dollars.  Third, there was the loss to A and her boyfriend:  $10,000 worth of uninsured belongings burnt or damaged.

[10]     Judge Barry had a pre-sentence report which recommended imprisonment. That report had an appendix approving Mr Wilton’s parents’ address in Upper Hutt for home detention, should the Court be minded to impose that sentence.

[11]     Mr Wilton was 19 when he appeared before the Judge; he will turn 20 on

19 October  this  year.    In  addition  to  the  convictions  I have  mentioned,  he  had convictions for theft, shoplifting, breaches of the Telecommunications Act 2001 and for breach of Police bail.

[12]     Judge  Barry  also  had  the  benefit  of  psychiatric  reports  from  Dr  Frank Rawlinson (25 November 2009) and Dr Caroline Holmes (15 February 2010).  The Judge commented on these at some length.  He noted both referred to Mr Wilton’s troubled youth and schooling, burgeoning alcohol and cannabis abuse, and to what the Judge described as “a fragile and damaged personality” marred by low self esteem, emotional immaturity and “grandiose and narcissistic ideas”.   The Judge commented:

[18]     You are clearly prone to impulsive and violent reactions when challenged, including self harm and a determination to get at others and she concludes, saying that there is a clear and pressing need that you are given the opportunity to get therapeutic treatment, including residential, intensive treatment for the demons that beset you.

[13]     Judge Barry was keenly aware of the conflicting sentencing imperatives of deterrence and denunciation on the one hand, and rehabilitation on the other.  He was

firm in his view that “deterrence and denunciation are prime in this exercise”.  But he also observed to Mr Wilton “that you clearly do need therapeutic and planned programmes to address your troubles”.

[14]     The Judge considered imprisonment inevitable, and took a starting point of around four and a half years minimum.  He deliberately did not build in any uplift from that to reflect Mr Wilton’s prior offending, taking the view that it was “part and parcel of the whole troubled state you were in that was going to break out somehow, and did, in this offending”.

[15]     He referred next to personal factors.  He accepted that Mr Wilton’s enforced abstinence from drugs and alcohol had allowed him to appreciate his predicament, and  that  Mr  Wilton  had  expressed  remorse  to  the  people  he  had  harmed. Particularly, relevant to the application before me, the Judge made this observation:

[41]     I accept that prison is a difficult place for a young man such as yourself, and certainly, more difficult than it is for hardened criminal offenders who have often been institutionalised and subject to an upbringing amongst criminal extended family.

[16]     To his four and a half years imprisonment sentencing starting point, the Judge applied  a  discount  of  14 months  (25%)  to  allow  for  all  those  personal  factors, reducing the sentence to three  years four months.   He then applied a full 33% (rounded up to 14 months) discount “leaving a reference point of 26 months or two years and three months”.

[17]     Mr Miller explained that the appeal was out of time because there had been a change of counsel from Ms Courtney to him.  Given that the appeal is founded on what has happened to Mr Wilton in prison, I would have no hesitation in granting leave if I considered the appeal had merit.  But, for the reasons that follow, I do not.

[18]     Similarly, I see no difficulty in accepting the fresh evidence which is the foundation for the application for leave to appeal.  This is an affidavit of Dr Holmes, exhibiting a further report on Mr Wilton dated 8 September 2010.  In relation to that affidavit  I  adopt  the  same  position  Simon  France  J  took  in  Lee  v  Police  HC Auckland CRI-2005-404-2827 July 2005 at [16]:

Concerning receipt of the fresh evidence, I note that s 121(3)(b) authorises a Court to vary a sentence “if satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence”.  I have little difficulty in reading personal history broadly  so  as  to  encompass  material  that  addresses  the  effects  of  a conviction on an accused.  The Court of Appeal in R v O’Neil CA 117/02, 27

June 2002, confirmed that s 123(1)(b) is to be interpreted “in a flexible way

… in relation to the new material that can be received on any appeal against sentence”.

[19]     The pertinent part of Dr Holmes’ further report is that it records Mr Wilton complaining that he was raped in or about early August while in Rimutaka Prison.  It records also that Mr Wilton was transferred to Wellington Prison on 27 August, as it was felt that this may be a safer prison environment for him.  However, since he has been in Wellington Prison Mr Wilton had been forcibly tattooed on the wrist, seemingly  with  a  tattoo  gun  made  using  the  electric  motor  removed  from  Mr Wilton’s stereo after it was smashed open. Dr Holmes gave this current diagnosis:

Mr Wilton does not present currently with any signs or symptoms of serious mental illness.   He no longer presents with extreme fluctuations of mood, self harming behaviour or irritability.  There was some indication of these at the start of his sentence, but his mental state very quickly settled.  He has largely been monitored by the Forensic Psychiatry Service because of his extreme vulnerability from other inmates.  This has caused him considerable anxiety and affected his sleep as it would anyone in this situation.  He doers meet some of the criteria for Post traumatic Stress Disorder both relating to earlier abuse experiences and more recently with symptoms associated with the  recent  assault.   These symptoms  may include anxiety,  hyperarousal, depression, irritability, poor sleep, emotional numbness and flashbacks to the event.   Currently Mr Wilton has hyperarousal, anxiety, poor sleep and flashbacks.

With respect the provisional diagnosis of sexual maturation disorder, Mr Wilton states that he has no issues around his gender identity or sexuality but he was aware that others did have (he was referring to taunts he has received in the prison).

[20]     Those parts of Dr Holmes’ further report formed the evidentiary basis for Mr Miller’s submission that a sentence of home detention could and should be substituted.    His  legal  basis  was  s  8(h)  Sentencing Act  2002  which  requires  a sentencing court to:

... take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.

[21]     While Mr Miller accepted that Judge Barry had recognised that prison would be difficult for Mr Wilton, Mr Miller submitted that it was inconceivable the Judge would  have  envisaged  that  Mr  Miller  would  be  sexually  violated  and  forcibly tattooed in prison.

[22]     Mr Miller pointed out that Mr Wilton had been in prison since November

2009, so had served 10 months of his sentence.  By using s 8(h) to give Mr Wilton a slightly greater discount than had the Judge, Mr Miller suggested the sentence could be reduced to two years imprisonment, which would enable the Court to substitute a sentence of home detention.   Mr Wilton’s parents’ home in Upper Hutt had been approved as an appropriate address for that sentence to be served.   Assuming a sentence of 12 months home detention, there would not be much left to serve.  When I asked Mr Miller what authority he had for this approach, he referred me to the Court of Appeal’s judgment in R v Cole (1988) 4 CRNZ 49.   Mr Cole had been sentenced to six months imprisonment for sexually assaulting a 14 year old boy in his bedroom at a home where a party was taking place.  The boy was so intoxicated he could not and did not resist.  Mr Cole was 26, and living in a de facto relationship with a 32 year old woman he planned to marry.   The Court of Appeal had been provided with a psychiatrist’s report addressing matters not before the sentencing Judge.  The Court quashed the sentence of imprisonment and substituted six months periodic detention and 12 months supervision, explaining that in the following terms:

We think that the material available to us but not to the sentencing Judge takes this case out of the category where imprisonment must be imposed. The reasons can be summarised as follows:

(a)The likelihood of lasting damage to Cole if incarcerated.   In this regard, we note that the doctor considers likely the provocation and entrenchment of his homosexual tendencies, particularly in a place when for a person of Cole’s vulnerability, sexual attacks or approaches cannot be ruled out.  Cole’s phobic disorders must also be considered.

(b)The very real chance of a permanent relationship offered by his proposed marriage.

[23]     For  two  main  reasons,  I  am  firmly  of  the  view  that  this  appeal  cannot succeed.  First, I do not accept that s 8(h) – or anything else – can warrant reducing the appropriate end sentence for Mr Wilton to two years, and thus enabling home

detention to be considered.  This was a very bad piece of crime.  It was malicious and nasty and carried the distinct risk of causing harm and damage far in excess of the very substantial (although still unquantified) damage it did cause.  Mr Miller did not challenge the Judge’s starting point.  He could not, given decisions such as R v Munro CA132/02, 24 July 2002, R v Protos CA259/04, 19 October 2004 and Lefebvre v Police HC Christchurch CRI-2008-009-2907, 10 July 2008.  I agree with Ms Ongley that the discount allowed by the Judge to reduce his four and a half year starting point to two years three months was right at the most generous margin of that permissible.  Ms Ongley calculated it at 48%, but I think it was actually 50% (54 months reduced to 27 months).  I rule out any further discount, particularly as its sole purpose would be to meet the threshold for home detention.

[24]     Secondly, I do not accept that what has happened to Mr Wilton in prison provides a sound basis for Mr Miller’s submission.   Stripped to its essentials, the steps in Mr Miller’s argument are these:

•Mr  Wilton  was  correctly  sentenced  (or  at  least  the  sentence  was correct when imposed).

•         Mr Wilton has been badly treated in prison.

•That bad treatment  justifies the Court  reconsidering sentence,  and substituting one of home detention so that Mr Wilton will no longer be at risk of bad treatment in prison.

[25]     I do not accept that that sort of bald reasoning is what s 8(h) contemplates. Although he did not expressly refer to it, Judge Barry gave correct effect to s 8(h). He recognised that prison would be difficult for Mr Wilton – more difficult than for a hardened criminal.  He tempered the prison sentence he imposed accordingly, in fact he tempered it as much as he reasonably could.

[26]     Directly in point is the Court of Appeal’s decision in R v Shirley [2009] NZCA 509. Mr Shirley was sentenced to six years imprisonment for aggravated burglary and stabbing someone with a knife. The offending was discrete, the

stabbing being committed while Mr Shirley was on bail for the aggravated burglary. Mr Shirley was a slightly built 19 year old.   His background, as outlined by the Court, bears striking resemblance to that of Mr Wilton.  These are the pertinent parts of the Court’s judgment:

[10]     The appellant has not fared well in prison since sentencing.   The material before us suggests that he has been raped, assaulted, threatened and generally “stood over” in prison.  He has lost a good deal of weight.  On one occasion he woke up to find that his cell mate had hanged himself but he managed to cut him down and safe his life.  He is currently, for his safety, in a unit with other vulnerable inmates.

...

(And then, after setting out a generous part of the Judge’s sentencing remarks)

[14]      The overall impression we have from the sentencing remarks was that the Judge was doing his best to be merciful while also recognising the seriousness of the offending and the public safety considerations which were necessarily engaged.  The appellant can count himself as fortunate that the Judge did not accumulate the sentences of two and a half years for the aggravated burglary and the six years for the wounding.  It would also have been open to the Judge to have fixed a minimum period of imprisonment.

...

[19]      Although the material now available about the appellant is far more extensive  than  what  was  before  the  Judge,  it  is  clear  that  the  Judge recognised that he was dealing with a challenged and vulnerable young man. Our view is that the Judge’s summary at [16] of his sentencing remarks remains accurate, notwithstanding the additional material we have seen.

[20]      Although it may be that the appellant, by reason of his personality and slight stature, finds prison more difficult than most, this is largely a matter for the prison authorities to address (as they now are doing).  To the doubtful extent that this mitigating factor was not allowed for by the Judge it is  more  than  compensated  for  by  the  overall  leniency  of  the  sentence imposed.

The Court dismissed the appeal.

[27]     Similarly, what has befallen Mr Wilton is a matter for the prison authorities to address, as in his case they also are obviously attempting to do.  Similarly also, the very lenient sentence imposed on Mr Wilton allows for the difficulties he was/will experience in prison.

[28]     In the result, I decline Mr Wilton leave to appeal against his sentence, which stands.

Solicitors:

John Miller Law, Wellington for the Appellant

Crown Solicitor, Wellington for the Respondent