IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000247 [2015] NZHC 298

BETWEEN	TUWAIRUA WILSON
Appellant	

AND	
THE QUEEN Respondent	

Hearing:	23 February 2015	

Appearances:	
D Nairn for the Appellant
M Hammer for the Crown	

Judgment:	
27 February 2015	

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 27 February 2015 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

WILSON v R [2015] NZHC 298 [27 February 2015]

Introduction

[1]       The appellant, Mr Wilson, appeals a sentence of six months’ imprisonment

imposed on him by Judge G T Winter in the District Court at Manukau on 29 July

2014. The sentence was imposed in respect of the following charges: (a)	Burglary, pursuant to s 231 of the Crimes Act 1961;
(b)       Unlawfully getting into a motor vehicle, pursuant to s 226(2) of the

Crimes Act;

(c)       Unlawfully being in an enclosed yard, pursuant to s 29(1)(b) of the

Summary Offences Act 1981.

Judge Winter reserved leave to Mr Wilson to apply for home detention. [2]	At the time of the offending, Mr Wilson was 17 years of age.
[3]       The sentence was imposed following a sentence indication given on 16 June

2014 also by Judge Winter.   At that stage, he indicated a starting point of five months’ imprisonment in respect of the burglary and an uplift of one month in respect   of  the  two   other  charges,   giving  a   total   sentence  of  six   months’ imprisonment.   He further indicated that there would be a discount for youth and other circumstances, and that he would settle on a sentence of imprisonment of four months.   He recorded that this clearly enabled him to consider alternatives to imprisonment as being the least restrictive option for somebody of Mr Wilson’s age. He stated as follows:

I am prepared to indicate a low-level sentence of community detention, a mid-to-higher level sentence of community work and a sufficient period of supervision to ensure that he can get the benefits of programmes that might break his association with others that are clearly leading him into crime.

[4]       Mr Wilson accepted the sentence and entered guilty pleas to the three charges on the same day.

Background facts

[5]       On 3 November 2013, Mr Wilson and two co-offenders forced entry into a residential dwelling in Frank Nobel Drive.   They removed various household and electronic items.  They were seen by neighbours when they were running from the house and loading the items into a vehicle.  The vehicle had been stolen earlier in the day by one of Mr Wilson’s co-offenders. The police were called.

[6]       Following the arrival of the police, Mr Wilson ran from the scene.  He was observed hiding in a neighbouring yard. The occupier of the house to which the yard was attached apprehended Mr Wilson, and detained him until the police arrived. When he was being taken into custody by the police, Mr Wilson threatened the neighbour, and said that he would return to rob his house, and burn it down.  He also abused the neighbour’s wife.

[7]       Mr Wilson has some Youth Court notations, but no previous convictions.

[8]       As I have noted, immediately following the sentence indication given by Judge Winter, Mr Wilson entered guilty pleas.  He was granted bail by Judge Winter, and placed on a 24-hour curfew.  He appealed that curfew.  The appeal was allowed. Lang J imposed a 12-hour curfew, rather than a 24-hour curfew, primarily because the ultimate sentence which Judge Winter had  indicated he would  impose, only permitted a 12-hour maximum curfew over each 24-hour period.  In the course of
allowing the appeal, Lang J noted as follows:1

Mr Wilson will know that any further offending, or breaches of his curfew between now and sentencing on 29 July 2014, are likely to force the Judge to reconsider the appropriateness of the sentence he has already indicated. As I have said, Mr Wilson’s future is in his own hands.

[9]       In the event, Mr Wilson breached the curfew.  I am told by counsel that there were three breaches.

[10]     When  the  sentence  was  imposed,  Mr Wilson  was  remanded  in  custody. Mr Nairn, appearing on his behalf, told me that he spent two weeks in custody before

1	Wilson v Police [2014] NZHC 1504 at [11].

he obtained bail pending the hearing of this appeal.   Insofar as I am aware, there have been no bail breaches over this period.

The grounds of appeal

[11]     Mr Wilson appeals the sentence imposed on the following grounds:

(a)	The sentence imposed by Judge Winter was not commensurate with the earlier sentence indication given;

(b)	Notwithstanding the absence of an address for community detention, the Judge erred in imposing a sentencing of imprisonment;

(c)	The sentence was manifestly excessive, and at odds with the sentences imposed on Mr Wilsons’s co-offenders; and

(d)	The Judge considered irrelevant matters.

Judge Winter’s sentencing notes

[12]     As noted, sentencing proceeding on 29 July 2014, some six weeks after the sentence  indication  had  been  given  and  accepted.     In  his  sentencing  notes, Judge Winter did not refer to the earlier sentence indication.

[13]     The Judge referred to the background facts.  He referred to Mr Wilson’s co- accused, one of whom was also 17 at the time and the other of whom was 21 years of age.  He noted the pre-sentence report, and in particular recorded that Mr Wilson was a young man, living off his wits, who had little oversight and little understanding of the impact of the offending in which he was involved.  He observed that Mr Wilson was assessed as posing a low risk of reoffending, and that his risk of harm to others was also assessed as low.   He recorded that no home detention or community detention address could be found, and that the recommendation in the report was a remand in custody with leave to apply for home detention.  The Judge recorded that Mr Wilson  was  asked  whether  he  wanted  an  adjournment,  or  to  proceed  to sentencing, and that Mr Wilson wanted to be sentenced on the day.

[14]     Judge Winter went on to record that Mr Wilson had evinced an appalling disregard for his bail conditions, and that he had breached the same on several occasions.  He considered that, as a result, Mr Wilson was not a good candidate for the stand-alone sentence of home detention, nor a good candidate for a sentence of community detention.  He stated that imprisonment had to become the first option.

[15]     The Judge considered the burglary showed a degree of premeditation and persistence, and that it was offending on a significant scale.  He took a starting point of 10 months’ imprisonment, and then uplifted that sentence by a month for each of the other charges.   He then deducted three months for Mr Wilson’s youth, and a further three months for his guilty plea, reducing the sentence to one of six months’ imprisonment.  He considered the totality principle, and considered that a sentence of  six  months’  imprisonment  would  not  exceed  the  overall  seriousness  and culpability of Mr Wilson’s offending.

[16]     Accordingly, Mr Wilson was sentenced to six months’ imprisonment, and he was given leave to apply for home detention under s 81 of the Sentencing Act 2002. The Judge also imposed release conditions for a period of six months following completion of the sentence of imprisonment.

Submissions

[17]     Mr Nairn submitted that the sentence imposed was in excess of the sentence indicated,  and  noted  that  Judge Winter  had  made  no  reference  to  his  previous indication in his sentencing notes.   He argued that even if the only option was a sentence of imprisonment, it was not open to Judge Winter to impose a sentence in excess of the four months that was indicated on 16 June 2014.  Further, he argued that the least restrictive option should have been adopted pursuant to s 8(g) of the Sentencing Act,  and  that  in  a  situation  where  there  is  no  suitable  address  for community detention, the Judge should have considered a more significant period of community work as an alternative, rather than imprisonment.

[18]     Mr Nairn referred to the sentences imposed on Mr Wilson’s co-offenders.  He stated that one of the co-offenders, a Mr Nathan, was sentenced to one month and
14 days’ imprisonment, and that the other, a Mr Anderson, received two months’

home detention and 200 hours’ community work.  Mr Nairn further submitted that Judge Winter  erred  by  considering  the  alleged  threatening  comments  made  by Mr Wilson to the neighbour.   He argued that this was irrelevant, as any charge in regard to that issue had been withdrawn by the police at an earlier stage.

[19]     Ms  Hammer,  for  the  Crown,  submitted  that  Judge Winter  did  not  err  in departing from his earlier sentence indication.  She argued that the fact that there was no address available for home detention or community detention, materially affected the  basis  on  which  the  sentence  indication  was  given,  and  that  the  indication therefore  was  not  binding  on  Judge Winter.    She  did,  however,  accept  that  the unavailability of a suitable address was a circumstance personal to Mr Wilson, and that it did not explain the disparity in starting points adopted by Judge Winter.

[20]     Ms Hammer further argued that Judge Winter did not err by imposing a sentence of imprisonment, and submitted that a sentence of community work and supervision, without electronic monitoring, would have been inadequate to meet the principles  of  deterrence,  denunciation  and  accountability.    She  also  noted  that Mr Wilson has a history of breaching bail conditions imposed on him.  She argued that, in the circumstances, the sentence imposed was not manifestly excessive.

Approach to the appeal

[21]     The charges against Mr Wilson were filed after 1 July 2013, and accordingly, the Criminal Procedure Act 2011 applies.  Section 250(2) of that Act states that the Court must allow the appeal if satisfied that:

(a)	for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)	a different sentence should be imposed. In any other case, the Court must dismiss the appeal.
[22]     The Court of Appeal has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.

It has noted that notwithstanding that s 250 makes no express reference to a sentence being manifestly excessive, that principle is well ingrained in the court’s approach to sentence appeals.2

[23]     The  approach  taken  to  sentence  appeals  under  the  former  Summary Proceedings Act was summarised in R v Shipton.3     Before a court will allow a sentence  appeal,  it  must  be  shown  that  there  is  an  error  vitiating  the  sentence imposed by the lower court.  Appeals proceed on an error principle.  To establish error, it must be shown that the judge in the lower court made an error, whether intrinsically, or as a result of additional material submitted to the appellate court.  It is only where error is involved that the appeal court shall re-exercise the sentencing discretion.  The Court should not intervene where the sentence is within the range
that can properly be justified by accepted sentencing principles.

[24]     Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.4

Analysis

[25]     I deal first with the sentence indication given.

[26]     Section 116 of the Criminal Procedure Act provides as follows:

116	Effect of sentence indication

(1)        This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.

(2)        The sentence indication is binding on the judicial officer that gave it unless—

(a)	information becomes available to the court after the sentence indication was given but before sentencing; and

(b)	the judicial officer is satisfied that the information materially affects the basis on which it was given.

2	Tutakangahau v R [2014] NZCA 729, [2014] NZLR 482 at [26]–[27] and [33] and [35].
3	R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[40].
4	Ripia v R [2011] NZCA 101 at [15].

(3)	The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.

[27]     Here, and as I have already noted, Judge Winter indicated on 16 June 2014 that he would settle on a sentence of imprisonment of four months, that it was accordingly open to him to consider alternatives to imprisonment, and that he would impose a low-level sentence of community detention, coupled with a mid-to-high- level sentence of community work and a period of supervision.

[28]     As I have also noted, the pre-sentence report recorded that no home detention or community detention address was available.

[29]     I am satisfied that the advice given in the pre-sentence report was additional information, which only became available to the Court after the sentence indication had been given, but before sentencing.   That information did materially affect the basis on which the sentence indication was given.  The non availability of an address for community detention meant that a sentence other than that indicated had to be imposed.

[30]     Judge Winter  did  not,  however,  explain  this  in  the  course  of  sentencing Mr Wilson.   He should  have done so.    Further,  he should  have discussed with counsel appearing for Mr Wilson whether or not Mr Wilson wished to seek leave to withdraw his plea of guilty, pursuant to s 115 of the Act.  Relevantly, it provides as follows:

115	Plea of guilty may be withdrawn by leave of court

…

(2)	The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

(a)        the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or

…

[31]     Judge Winter did not take this step.  Rather, Mr Wilson’s counsel was given the opportunity of deciding whether he wanted to ask for an adjournment, or proceed to sentencing on the day.  The possibility of withdrawing the plea was not offered by the Judge.

[32]     In my judgment, Judge Winter erred in regard to these matters.

[33]     There are further difficulties.  In sentencing, the starting point of five months given in the sentence indication was replaced with a starting point of 10 months. An uplift  of two  months  was  imposed for the additional  offending,  rather  than the indicated uplift of one month.  This had the effect of taking the total starting point to
12 months, instead of the six months indicated.  After discounts were applied, the end   sentence   was   six months,   instead   of   the   four   months   indicated,   and imprisonment was imposed instead of a combination of community-based sentences.

[34]     The new information available, namely as to the availability of an address, affected what sentence could ultimately be imposed, but it should not have altered the  starting  point.    Starting  points  are  fixed  by  reference  to  the  gravity of  the offending in issue, and not by reference to factors personal to an offender.  The non availability  of  an  address  for  community  detention  was  a  matter  personal  to Mr Wilson, and that it did not affect the gravity and circumstances of his offending. The Crown responsibly accepted this.  No indication was given by Judge Winter for the change in starting point, and in my view, he also erred in principle by adopting a starting point that was twice that adopted in the indication he had given.

[35]     I am satisfied that there was an error in the sentence imposed by the Judge.

[36]     Even now, there has been no indication that Mr Wilson wishes to withdraw his pleas, and, of course, the sentence indication given by Judge Winter does not bind me.

[37]     If I am to allow the appeal, I must also be satisfied that a different sentence should have been imposed.  I must consider afresh what sentence was appropriate.

[38]     The lead offence was clearly the burglary charge.  The Court of Appeal in

Arahanga v R,5 observed as follows:

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[39]     Seen  in  this  light,  the  starting  point  adopted  by  Judge Winter  in  his sentencing notes was lenient.

[40]     Pursuant to s 8(e) of the Sentencing Act, the Court was required to take into account  consistency of  sentencing  levels  with  co-offenders,  and  other  offenders committing the same or similar offences.

[41]     Judge Winter,  when  giving  the  sentence  indication,  stated  that  one  of

Mr Wilson’s co-accused, Mr Nathan, had received a sentence of one month and

14 days’ imprisonment, and that the other, who he said had a much worse previous history and was more involved in the burglary than Mr Wilson, received a sentence of two months’ home detention and 200 hours’ community work.

[42]     The  Crown  told  me  that  Judge Winter  erred  in  this  regard,  and  that

Mr Nathan was sentenced to one year, one month and 14 days’ imprisonment.

[43]     Neither counsel was able to obtain or make available to me the sentencing notes for the co-offenders.   I have no knowledge of how the sentences were structured, and indeed there is some uncertainty in regard to the ultimate sentence imposed  on  Mr  Nathan.    It  may  be  that  the  sentence  imposed  on  the  other co-offender was appropriate by reference to his circumstances.  It may be that it was too light.   I accept that consistency is an important consideration when sentencing co-offenders, but observe that parity is achieved not simply by reference to a co- offender’s culpability, but also by sentencing each offender appropriately for his or

her role in the overall offending, taking into account any aggravating or mitigating features personal to each offender.6

[44]     I now turn to consider sentences passed in relation to similar offending.

[45]     In  R  v Columbus,7   the appellant  forced  open  the garage of a residential property, causing damage to the value of $672. The appellant stole a mountain bike, gardening tools and a tool box. The Court of Appeal considered the burglary to have been opportunistic and at the lower end of the scale of offending.  It considered that it justified a starting point of one year imprisonment.

[46]     In Tutakangahau v R,8  the appellant went into two tents and stole clothing and other personal items at a music festival.  The offending was spur of the moment offending.  He admitted the offence the next day and showed the police where the goods were hidden. The appellant was 18 at the time of the offending. The District Court Judge adopted a starting point of 15 months’ imprisonment for two charges of burglary.   The High Court considered that this sentence was within the available range.    On  appeal,  the  Court  of Appeal  considered  that  the  starting  point  was excessive.  The  end  sentence  of  11  months’  imprisonment  was  quashed  and substituted with a sentence of six months’ imprisonment.

[47]     Mr Wilson’s offending is clearly more serious than in Tutakangahau v R.

Mr Wilson’s offending involved:

(a)       the  burglary  of  a  residential  home.  The  nature  of  the  residential dwelling makes the offending inherently more serious than a burglary from a tent;

(b)	some premeditation;

(c)	multiple offenders.

6	R v Kohey (2003) 20 CRNZ 62 (CA) at [20].
7	R v Columbus [2008] NZCA 192.
8	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[48]     The  six  months’  end  sentence  that  the  Court  of  Appeal  came  to  in Tutakangahau v R took into account the appellant’s prior convictions for burglary and gave him a discount for youth. Mr Wilson has no prior convictions. This factor balances against the more serious burglary in this case than in Tutakangahau.

[49]     The offending in issue in Mr Wilson’s case involved burglary of a residential home.  There was a risk that the home might have been occupied.  As I have noted, there was some premeditation, and multiple offenders were involved.   Mr Wilson was, however, directly involved in the burglary.   Further, Mr Wilson breached his curfew whilst on bail pending sentencing. As against this, I accept that the offending was not particularly serious offending of its kind.  Nor was it recidivist offending.  I also acknowledge that Mr Wilson was not involved in stealing the car used in the burglary and that he entered the yard in an attempt to escape detection.  He was not the primary offender, and he was naïve, young and easily misled.

[50]     I have ignored the alleged threats made to the neighbours.   A charge in relation to that alleged offending was withdrawn by the police.

[51]     I consider that the starting point of 10 months’ imprisonment for the burglary adopted by Judge Winter was not inappropriate and that it was within the available range.  It was also appropriate to uplift that starting point by two months to allow for the additional offending.   The overall starting point of 12 months does not offend against the totality principle.

[52]     Judge Winter allowed Mr Wilson a three-month discount for his age.  That was generous and no issue can be taken with it.   He also allowed him a further discount of three months for the guilty pleas. Again, that was appropriate and in line with the Supreme Court decision in Hessell v R.9

[53]   In my judgment, the appropriate end sentence was one of six months’ imprisonment.  No address for community detention was available, and a sentence of community work or supervision on its own, without electronic monitoring, would have  been  inadequate  to  meet  the  principles  of  deterrence,  denunciation  and

accountability  which  are  enshrined  in  s  7  of  the  Sentencing Act.     In  the circumstances, I consider imprisonment to have been the least restrictive outcome appropriate to the offending.10

[54]     The appeal is dismissed.

Wylie J