WIGGLESWORTH v NEW ZEALAND POLICE [2019] NZHC 347

WIGGLESWORTH v NEW ZEALAND POLICE [2019] NZHC 347 [5 March 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-999[2019] NZHC 347BETWEEN BRENT WIGGLESWORTHAppellantAND NEW ZEALAND POLICERespondentHearing: 5 March 2019Appearances: C Harold for AppellantE Collis for RespondentJudgment: 5 March 2019ORAL JUDGMENT OF TOOGOOD JIntroduction[1] Brent Wigglesworth pleaded guilty to one charge of theft (under $500)1 andone charge of unlawfully getting into a ship.2[2] On 29 August 2018, Judge C J Harding sentenced Mr Wigglesworth to18 months' intensive supervision and 60 hours' community work.3 He was alsoordered to pay $406.31 in reparation, by instalments.[3] Mr Wigglesworth appeals his sentence on the ground that it was manifestlyexcessive, having regard to the one month that he had spent in custody prior tosentence.Factual background[4] On 2 February 2018, Mr Wigglesworth paddled his kayak out to a yachtmoored at Pilot Bay, Mount Maunganui. He boarded the boat and spent the nightthere. The owner of the boat apparently saw him do that and reported the matter toPolice. When questioned by Police, Mr Wigglesworth said he thought the yachtbelonged to his friend. That was plainly a lie. $206.31 of the ordered reparationrelated to damage Mr Wigglesworth did to a hatch on the yacht.[5] On 8 February 2018, Mr Wigglesworth stole two surfboards, collectivelyworth $200; that amount constitutes the remainder of the reparation ordered by theJudge.Judge Harding's decision[6] Judge Harding recognised that Mr Wigglesworth has a long-standing alcoholproblem. However, Mr Wigglesworth had been in custody serving sentences ofimprisonment on other matters. That naturally limited his drinking and left him in aposition where he was able to express some insight into his offending.1 Crimes Act 1961, ss 219 and 223(d); the maximum penalty is three months' imprisonment.2 Section 226(2); the maximum penalty is two years' imprisonment.3 Police v Wigglesworth [2018] NZDC 20548.[7] The Judge noted that the pre-sentence report recommended intensivesupervision and community work, and he adopted the recommendation. The sentenceof intensive supervision imposed by the Judge included the following conditions:(a) attendance at a suitable drug and alcohol programme to the satisfactionof a probation officer;(b) attendance at a counselling or treatment programme to the satisfactionof a probation officer; and(c) attendance at an assessment for a departmental programme and, ifaccepted, completion of that programme to the satisfaction of aprobation officer.[8] The reparation was ordered to be paid at a rate of $25 per week, with the firstinstalment due within 28 days of the sentencing.[9] Mr Wigglesworth has a history of minor offending, including some offences ofdishonesty, but that history was not referred to by the Judge and it appears he did notgive it any weight.The appeal[10] Mr Wigglesworth filed his appeal out of time and he now seeks a retrospectiveextension.4 It seems Mr Wigglesworth did not know about the time limit for filing anappeal. However, the Police do not oppose an extension being granted and, as thereis no prejudice to the respondent, I grant the extension accordingly.[11] Mr Wigglesworth is now represented by Ms Harold, who submits that theJudge made an error in that he failed to take into account, in imposing sentence, thetime of roughly four weeks Mr Wigglesworth had spent on remand in custody prior tobeing sentenced. Ms Harold submits, therefore, that although a sentence ofimprisonment was not imposed, credit should nevertheless have been given for the4 Criminal Procedure Act 2011, s 248(4).time spent on remand;5 ordinarily, full credit would be given, as if the time spent onremand was spent serving the sentence.6[12] Ms Harold submits that the four weeks in custody on remand is the equivalentof two months' imprisonment because an offender is automatically released on paroleafter serving half of a short-term prison sentence.7 Given the level of offending andthe time Mr Wigglesworth spent in custody, therefore, Ms Harold submits that anappropriate end sentence was one of intensive supervision and an order to payreparation and says that the community work aspect of Judge Harding's sentenceshould be quashed.[13] For the respondent, Ms Collis accepts that Judge Harding did not specificallyapply a discount for time served in custody, and acknowledges that I must infer fromthat that the Judge did not take that factor into account. But counsel submits that theend sentence, although the Judge may have erred, is not manifestly excessive. Theproposition is that a sentence of imprisonment could well have been imposed, givenMr Wigglesworth's recent criminal history which includes having been sentenced toshort terms of imprisonment for other offending. Since 2017, he was convicted ofbeing unlawfully in a building, wilful trespass (for which he served two months'imprisonment), assaulting the Police and drink driving (for which he received sixmonths' imprisonment) and two charges of theft (of under $500). Ms Collis hasreferred to several cases where sentences of imprisonment were imposed forunlawfully getting into a vehicle,8 but acknowledges that some of those wouldproperly be characterised as more serious than this offending.Decision[14] I accept that Judge Harding did not say he had addressed the timeMr Wigglesworth spent remanded in custody before sentencing. I am conscious thatDistrict Court Judges dealing with busy lists often have only a limited amount of time5 Te Aho v R [2013] NZCA 47 at [17]; Ropiha v R [2013] NZCA 60 at [26].6 Longman v Police [2017] NZHC 2928 at [9].7 Parole Act 2002, s 86(1).8 Kara-Newcombe v Police [2018] NZHC 25; McDonald v Police [2012] NZHC 1408; Rota v PoliceHC Gisborne CRl-2009-416-20, 14 September 2009; Prasad v Police HC Napier AP50/1, 13 December2001; Mack v Police HC Dunedin CRI-2007-012-4365, 4 October 2007.to express their reasons for the imposition of the sentence, but it would have beenappropriate for the Judge to expressly take it into account. The appeal must beallowed, however, only if I am satisfied that a different sentence should be imposed asa result of the error.9[15] In my view, the final sentence the Judge imposed was within the availablerange. A sentence of imprisonment could not have been challenged as unreasonable,given the damage that was caused; the deliberate nature of the offending andMr Wigglesworth's recent criminal history. Instead, the Judge took a constructiveapproach, as recommended by the probation officer, in deciding that a community-based sentence was appropriate. I refer particularly to the measures he adopted to helpMr Wigglesworth tackle his alcohol problem.[16] The imposition of a sentence of community work formed a necessary part ofthe sentence, bearing in mind the need to hold Mr Wigglesworth accountable for hisoffending and to promote in him a sense of responsibility.10 Even taking into accountMs Harold's point about the time Mr Wigglesworth spent in custody on remand, asentence which included an order to undertake 60 hours' community work out of anavailable period of 400 hours was not, in my view, manifestly excessive.Result[17] In the circumstances, I dismiss the appeal..Toogood J9 Criminal Procedure Act 2011, s 250(2).10 Sentencing Act 2002, s 7(1)(a) and (b).