WILSON v NEW ZEALAND POLICE [2019] NZHC 2066

WILSON v NEW ZEALAND POLICE [2019] NZHC 2066 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI 2019-476-0014[2019] NZHC 2066BETWEEN EMILY WILSONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2019Appearances: C M Ruane for the AppellantH Bennett for the RespondentJudgment: 22 August 2019ORAL JUDGMENT OF JAGOSE JThe judgment was delivered by me on 22 August 2019.Registrar/Deputy RegistrarCounsel/Solicitors:C M Ruane, Barrister ChristchurchCrown Solicitors, Timaru[1] Ms Wilson, you are appealing your sentence of two years and four months'imprisonment, imposed by Judge A C Roberts in the District Court at Timaru on 4April 2019.1 The sentence related to a four-month spree of offending, in continuationof your prior conduct. You appeal that sentence as manifestly excessive, and not takingyour personal circumstances into account.Background[2] The charging documents are extensive, of offences between 30 August 2018and 1 January 2019, with a maximum two years' imprisonment on the driving charges.Other charges attract variously one year, six months, and three month maximumsentences.2 You pleaded guilty to nineteen offences.[3] Judge Roberts found you were "quickly developing into a prolific professionalthief". He listed your present charges as well as a number of relevant previousconvictions and considered, even when subject to sentence, your offending "wasbusiness as usual". The Judge noted your recent clarity from sobriety, and your highmotivation to comply, due to you recognising you had responsibilities to your children.1 Police v Wilson [2019] NZDC 6370.2 30 August 2018: theft (Crimes Act 1961, ss 219 and 223(c): one year); 30 August 2018: possessionof pipe or other utensil (Misuse of Drugs Act 1975, s 13(1)(a) and (3): one year); 30 August 2018:unlawful possession of police property (Policing Act 2008, s 50: three months); 5 September 2018:theft (Crimes Act 1961, ss 219 and 223(d): three months); 7 September 2018: careless operationof vehicle (Land Transport Act 1998, s 37: $3,000 fine and disqualification); 7 September 2018:driving under influence of drink or drugs: (Land Transport Act 1998, s 58(1)(b) and (3): twoyears); 7 September 2018: theft (Crimes Act 1961, ss 219 and 223(c): one year); 16 September2018: breach conditions of community detention (Sentencing Act 2002, s 69G(a): maximum termof six months' imprisonment); 30 September 2018: theft (Crimes Act 1961, ss 219 and 223(d):three months); 3 October 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 6October 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 13 October 2018: drivingwhile impaired (Land Transport Act 1998, s 57A(1) and (3): two years); 6 November 2018: breachconditions of supervision (Sentencing Act 2002, s 70(a): three months); 6 November 2018: failureto answer bail (Bail Act 2000, s 38(b): one year); 27 November 2018: theft (Crimes Act 1961, ss219 and 223(d): three months); 28-30 November 2018: theft (Crimes Act 1961, ss 219 and 223(d):three months); 12 December 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 16December 2018: theft (Crimes Act 1961, ss 219 and 223(d): three months); 28 December 2018:theft (Crimes Act 1961, ss 219 and 223(d): three months); 1 January 2019: theft (Crimes Act 1961,ss 219 and 223(d): three months); 1 January 2019: possession of pipe or other utensil (Misuse ofDrugs Act 1975, s 13(1)(a) and (3): one year); 1 January 2019: possession of controlled drug(methamphetamine) (Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a): six months); 1 January 2019:possession of controlled drug (cannabis) (Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b): threemonths); 1 January 2019: medicine (diazepam) in non-conforming container (Medicines Act 1981,ss 46 and 78: three months); and 1 January 2019: possession of knife (Summary Offences Act1981, s 13A: three months).The Judge also acknowledged your former partner currently is serving a prisonsentence, after seriously assaulting you last year.[4] The Judge took the driving offending as the lead charges, noting these wereyour sixth and seventh such charges. In relation to the offending on 7 September 2018,he considered the aggravating factors of thatoffending were your elevated level ofintoxication, the fact you had an accident, and your previous convictions, including inJanuary 2012 on two similar charges committed a month apart. The Judge counted thesecond driving offence as an aggravating factor, committed while the first offence wasstill before the Court. He considered the offending fell within band two of a tariff casecalled Samson and adopted a starting point of 18 months, being ten months for theSeptember 2018 offending and a further eight months for the October 2018 offending.3[5] The Judge then imposed twelve months for the theft charges, and two monthsfor the breach of community detention, bringing the sentence to 32 months'imprisonment. He allowed a concession – "but not a full concession", given the guiltypleas were not early, and the offending was ongoing – by taking four months off thetheft charges. The end sentence reached was therefore 28 months' imprisonment, withconcurrent sentences imposed for all other charges. The Judge remitted outstandingfines of $4,900.Issues on appeal[6] Your counsel, Craig Ruane, raises your personal circumstances, not explicitlybefore Judge Roberts at sentencing. They include your own description of thosecircumstances, and your personal aspirations for rehabilitation. You say youroffending is based in your long-standing abusive relationship with your similarlymethamphetamine-addicted former partner. Mr Ruane considers a larger discount,more referable to the totality of your offending, was available in those circumstances.He says the Judge's "arithmetical approach" has resulted in a "clearly excessive"sentence, which should have been in the range of 20 to 24 months.3 Samson v Police [2015] NZHC 748.Approach to appeals against sentence[7] I must allow the appeal only if I am satisfied there is an error in the sentence,and a different sentence should be imposed.4 In any other case, I must dismiss theappeal.5 The approach previously taken by courts on sentencing appeals continues toapply;6 the measure of error is the sentence be "manifestly excessive" – the principleis "well-engrained" in this Court's approach to sentencing appeals.7 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.8Discussion[8] I acknowledge your more recent recognition of the position your continuedoffending puts you and your children, and your wish to have that taken into accounton appeal. But the Judge had regard for your personal circumstances. Nothing youhave amplified now would have been likely to elicit a materially larger discount.9[9] The Judge had regard for totality. That is clear from the driving offences alone,each of which supported a 12 to 18 month start point by reference to Samson.10 Thatis not affected by any error the Judge may have made as to the timing of the twooffences coming to Court. The frequency of your thefts was such as justified also astern sentence, the Judge noting their escalation into likely imprisonment territory. Adistinct sentence for your non-compliance also was justified.[10] Concurrent sentences were made in relation to fourteen charges, including thedrug offending (which the Judge accepted reflected your "dependency issues" andgenerated your wider offending). Your guilty pleas varied in their timing, diminishingtheir overall value, and your offending continued unabated.4 Criminal Procedure Act 2011, s 250(2).5 Section 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].7 At [33] and [35].8 Ripia v R [2011] NZCA 101 at [15].9 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].10 Samson v Police, above n 3, at [15]–[16].[11] The Judge's discount, while universally applied, was made taking all thosefactors into account. Standing back, I see nothing to suggest the Judge's end sentenceis 'out of range', or 'manifestly excessive'.Result[12] The appeal is dismissed.—Jagose J