Wood v Police - [2013] NZHC 1098

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000262 [2013] NZHC 1098

BETWEEN JOSHUA RODOP WOOD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 25 March 2013

Appearances: S A Rees for Appellant
A J Pollett for Respondent

Judgment: 15 May 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 May 2013 at 11:30 am
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

Solicitors: Meredith Connell, P O Box 2213, Auckland 114
Fax: (09) 336-7629 – Email: anna.pollett@meredithconnell.co.nz

Counsel: S A Rees, P O Box 14383, Tauranga 3143
Email: aucklandlegal@gmail.com

WOOD V NZ POLICE HC AK CRI-2012-404-000262 [15 May 2013]

Introduction

[1] Joshua Wood was convicted following guilty pleas on 25 charges and sentenced to two years nine months’ imprisonment.1 Judge Treston sentenced him along with two co-offenders, Michael Erikson and Legend Ross. Another co- offender, Joshua Sprague, was sentenced separately by Judge Perkins to nine months’ home detention.2 Mr Wood appeals his sentence on the basis of disparity between his sentence and that of Mr Sprague.

[2] Of the 25 offences on which Mr Wood was convicted, 16 were committed along with Mr Sprague and others. These offences occurred over two distinct periods. Between 23 and 24 August 2011 all four co-offenders were party to 13 offences involving the forced entry into vehicles and burglary of premises.3 Between
31 August and 1 September 2011 the same offenders were party to two instances of

conversion and one of burglary.

[3] In addition, Mr Wood was convicted for offences committed between July and September 2011, namely unlawful interference with a vehicle,4 conversion,5 one of breaching bail conditions, one of theft,6 one of breaching bail conditions,7 one of breaching conditions of a previous sentence to supervision8 and one of driving while disqualified.9

[4] Mr Sprague also faced additional charges on his own. These were one charge of unlawfully being in building, one of theft, two of unlawfully taking a motor vehicle, three of aggravated robbery, one of unlawfully getting into a motor vehicle,
one of possession of instruments for conversion and one of driving while prohibited.

1 NZ Police v Erikson, Ross & Wood DC Auckland CRI-2011-090-004518, 16 July 2012.
2 R v Joshua Sprague DC Auckland CRI-2011-004-023174, 8 June 2012.
3 Three counts of burglary under s 231(1) Crimes Act 1961, five counts of unlawful interference under s 226(2), three counts of theft under s 219 and two counts of conversion under s 226(1).
4 Three counts under s 226(2).
5 Two counts under s 226(1).
6 Section 219.
7 Section 37(a) Bail Act.
8 Section 70(a) Sentencing Act.
9 Section 32(1)(A) Land Transport Act 1998.

[5] Given the relative similarity in offending there is the appearance of disparity between the sentence of two years nine months imposed on Mr Wood and that of nine months’ home detention imposed on Mr Sprague. However, I could only interfere with the sentence imposed on Mr Wood if that disparity is both unjustified and…

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: [2013] NZHC 1098
Decision Date: 15 May 2013

CaseChat Overview and Summary

Joshua Wood was convicted of 25 offences and sentenced to two years and nine months’ imprisonment. He appeals on the basis that his sentence was disproportionately higher than that of his co-offender, Joshua Sprague, who was sentenced to nine months’ home detention. The court must decide whether the disparity between the sentences is unjustifiable and gross, and if the sentence imposed on Wood was inappropriately high.

The court notes that while there are similarities in the offending, there are also differences between Wood and Sprague. The court considers whether the disparity between the sentences is unjustifiable and gross, and whether the sentence imposed on Wood was too long. The court concludes that the disparity between the sentences is unjustifiable and gross, and that the sentence imposed on Wood was too long.

The court considers the factors taken into account by the sentencing judge, and concludes that the judge failed to take into account Wood’s personal circumstances, including a disrupted home life and a previous suicide attempt and efforts to seek help for his drug habit. The court also notes that the judge did not allow a discount for Wood’s youth, and that the sentence imposed on Wood was higher than the starting point indicated by the judge.

The appeal is allowed. The sentences of two years and nine months on the burglary charges are quashed and sentences of two years’ imprisonment substituted. The sentence of two-and-a-half years for conversion is also quashed and substituted with a sentence of two years’ imprisonment. The terms are concurrent and the other sentences imposed by the Judges are affirmed.

Orders