WICKLIFFE v THE NEW ZEALAND POLICE [2021] NZHC 1362

WICKLIFFE v THE NEW ZEALAND POLICE [2021] NZHC 1362 [10 June 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-463-00016[2021] NZHC 1362IN THE MATTER OF An appeal against sentenceBETWEEN JOHN WAYNE WICKLIFFEAppellantAND THE NEW ZEALAND POLICERespondentHearing: 31 May 2021Appearances: M James for Appellant M J Lillico for RespondentJudgment: 10 June 2021JUDGMENT OF POWELL JThis judgment was delivered by me on 10 June 2021 at 2 pmRegistrar/Deputy RegistrarDate:Counsel: M James, HamiltonSolicitors: Crown Law, Wellington[1] On 19 February 2019, Judge T R Ingram in the District Court at Waihi sentenced Mr Wickliffe to six years and six months' imprisonment on the following charges: 1(a) two charges of wounding with intent to cause grievous bodily harm arising out of a serious assault by Mr Wickliffe against his uncle and his uncle's friend on 3 October 2017 ("the wounding charges"); 2(b) two charges of failing to comply with reporting obligations after being registered on the child sex offender register, 3 and two charges of breaching an extended supervision order ("the breach of ESO and reporting charges"); 4 and(c) one charge of theft under $500 ("the shoplifting charge"). 5[2] In sentencing Mr Wickliffe, Judge Ingram considered the two wounding charges, which arose out of the same incident, could not be separated. 6 His Honour therefore set a starting point of eight years' imprisonment to reflect the seriousness of both offences. 7 The aggravating factors included the extremity of the violence; offending while subject to a court order; and the degree of harm suffered by both victims, while at the same time recognising a degree of harm is inherent in the charge.8The Judge also pointed to Mr Wickliffe's substantial record of alcohol related offending. 9[3] As the wounding charges were second strike offences and had to be served without parole, Judge Ingram applied a 25 per cent discount for Mr Wickliffe's guilty1 Police v Wickliffe [2019] NZDC 2934 [Second sentencing notes]. Judge Ingram originally sentenced Mr Wickliffe in 2018. In Wickliffe v R [2019] NZHC 17, Katz J remitted the sentence to the District Court for re-sentencing. Judge Ingram did so in the judgment under appeal.2 Crimes Act 1961, s 188(1). Maximum penalty 14 years' imprisonment.3 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39(1). Maximum penalty one year's imprisonment and/or a fine not exceeding $2,000.4 Parole Act 2002, s 107T. Maximum penalty two years' imprisonment.5 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months' imprisonment.6 R v Wickliffe [2018] NZDC 1004 [First sentencing notes] at [14]. Continued in Second sentencing notes at [6] and [14].7 First sentencing notes at [14].8 At [13].9 At [13].pleas, being the sole adjustment for personal factors identified. His Honour convicted and sentenced Mr Wickliffe to imprisonment for a period of six years, directing that Mr Wickliffe serve the full term of that sentence. 10[4] Judge Ingram then went on to consider the remaining charges. His Honour considered that 12 months' imprisonment was appropriate for the breach of the ESO and reporting charges, but with regard to totality reduced this to a term of six months' imprisonment, cumulative upon the wounding charges. 11 Finally, one month's imprisonment was imposed on the shoplifting charge, concurrent with the sentence imposed on the other non-violent offending. 12[5] Mr Wickliffe takes no issue with the approach taken by Judge Ingram. Instead Mr Wickliffe seeks leave to appeal his sentence (some two years out of time) on the sole basis a cultural report pursuant to s 27 of the Sentencing Act 2002 was not prepared and tendered to the court at the time he was sentenced. Mr Wickliffe says he only recently found out about s 27 reports and that in his case such a report would have led to further discounts for personal factors and, as a result, a manifestly excessive sentence has resulted.[6] The Crown accepts that leave should be granted to enable the appeal to proceed. It accepts there is merit in what Mr Wickliffe is seeking, the issues in the appeal being the appropriate discount and how the resulting sentence should be structured.Submissions[7] Ms James submits on behalf of Mr Wickliffe the s 27 report shows a clear nexus between Mr Wickliffe's background and the offending for which he was sentenced. She notes in particular the account provided of Mr Wickliffe having a disadvantaged life from an early age resulting in educational underachievement; alcohol abuse from three or four years old; exposure to violence at a young age; being a victim of sexual abuse by multiple offenders; and going on to commit violence10 Second sentencing notes at [7] and [14]; Sentencing Act 2000, s 86C.11 Second sentencing notes at [15]-[16].12 At [15].against others. Ms James says, consequently, Mr Wickliffe's choices have been impaired and his moral culpability is diminished. Ms James submits a discount of 15 to 20 per cent is appropriate.[8] Mr Lillico, on behalf of the Crown, initially accepted that only a modest discount for personal factors was appropriate in the circumstances. In particular, Mr Lillico was concerned Mr Wickliffe's intoxication was central to his offending and s 9(3) of the Sentencing Act prohibits the court from allowing mitigation for voluntary intoxication. In oral argument, Mr Lillico accepted that the s 27 report made clear there is a significant causal link between Mr Wickliffe's upbringing and his alcohol issues, and the information provided had also demonstrated significant rehabilitative efforts Mr Wickliffe has made which Judge Ingram was not made aware of at sentencing. Together, Mr Lillico accepted these could reasonably give rise to a total discount of 15 per cent.Discussion[9] Section 8(1)(i) of the Sentencing Act requires a sentencing judge to take into account the offender's personal, family, whānau, community and cultural backgroundin imposing a sentence. As the s 27 report dated 29 March 2021, prepared on behalf of Mr Wickliffe, addresses these factors and was not before Judge Ingram, leave is appropriately granted to consider which discounts for the personal factors identified are in fact warranted.[10] As Ms James submitted, the s 27 report describes a range of disadvantages experienced by Mr Wickliffe in the course of his life. Although corroboration is only available for some of the matters identified, the information in the report is largely undisputed for the purposes of this appeal.[11] Some of the matters identified by the report writer provide an insufficient basis for any discrete discount. These include matters such as Mr Wickliffe's lack of education and the reasons for it. Likewise, while the report writer has put considerable emphasis on Mr Wickliffe's witnessing violence in his childhood, it does not appear to have led to a life of violent crime. On the contrary, and as Mr Lillico submitted, thewounding charges were out of character for Mr Wickliffe and perhaps more the result of alcohol.[12] Conversely, the s 27 report and the other supporting information placed before the Court of Appeal does provide a reasonably credible picture of how Mr Wickliffe was exposed to alcohol from a very young age and indicates both his grandfather and mother appeared to have significant alcohol problems. This provides a clear causal link with Mr Wickcliffe's own alcohol dependence, cannabis and alcohol abuse issues for which he has been diagnosed in terms of DSM-IV-TR. Likewise, the s 27 report goes on to indicate Mr Wickliffe suffered sexual abuse and other trauma which he has been receiving counselling for and has been diagnosed with post-traumatic stress disorder, although a detailed report has not yet been made available.[13] Finally, and in contrast to Mr Wickliffe's initial sentencing in 2017 13 when the PAC report recorded he had little insight into his behaviour or interest in addressing his issues, it is clear from both the s 27 report and a range of other reports placed before the court in order to corroborate statements in the s 27 report, that Mr Wickliffe has made considerable progress in addressing his drug and alcohol dependency issues as well as his own identified trauma.[14] Taking these various matters together, I agree with Mr Lillico that this is best considered in terms of a 10 per cent discount for Mr Wickliffe's alcohol dependence issues arising from his childhood, together with a five per cent discount for the rehabilitative efforts he has been making. These additional discounts are clearly significant and mean that the appeal should be allowed.[15] The next issue is how these discounts should be applied. Both Ms James and Mr Lillico in slightly different ways suggested consolidating the total sentence and applying the additional net 15 per cent discount on that basis. As I discussed with them in the course of the hearing, this does not take into account the fact that Judge Ingram split the second strike wounding offences from the non-violent13 Which took place over a year before the sentencing at issue in this appeal.offending to ensure Mr Wickliffe was not subject to the non-parole restrictions in respect of those non-violent offences. 14[16] As a result, it follows that the discrete discounts identified need to be applied separately to both the wounding charges and the breaches of the ESO and reporting charges.[17] This means a total discount of 40 per cent needs to be deducted from the starting point identified by Judge Ingram on the wounding charges. This results in an end sentence of four years and nine months' imprisonment. As before, pursuant to s 86C of the Sentencing Act, this sentence is required to be served without parole.[18] With regard to the breaches of the ESO and reporting charges, it is noted that no discrete discount for guilty plea was given in terms of sentencing. Instead an effective discount of 50 per cent was given for totality considerations. This reduced the starting point of the 12 months' cumulative imprisonment for those offences to six months. As no issue was taken with the initial deduction other than the discounts for personal factors now apparent from the s 27 report, I conclude that the appropriate approach to provide for the additional discount identified in respect of the breaches of the ESO and reporting charges is to reduce the sentence in proportion by deducting a further 15 per cent with regard to these offences. This leads to an end sentence on the ESO and reporting offending of five months' imprisonment. The concurrent sentence in respect of the shoplifting offence remains unchanged.Decision[19] The application for an extension of time to appeal is granted.[20] The appeal is allowed. Mr Wickliffe's sentence is modified as follows:(a) On the wounding offending, Mr Wickliffe's end sentence is substituted for one of four years and nine months' imprisonment. For the sake of14 Second District Court judgment at [4].clarity, Mr Wickliffe is required to serve the full term of this sentence pursuant to s 86C(4) of the Sentencing Act.(b) On the ESO and reporting offending, Mr Wickliffe's end sentence is substituted for one of five months' imprisonment cumulative on his sentence in respect of the wounding offending.(c) The one month's imprisonment in respect of the shoplifting offending to be served concurrently on the ESO and reporting offending remains unchanged._______________________________Powell J