WHEELER v R [2023] NZCA 563

WHEELER v R [2023] NZCA 563 [15 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA650/2022[2023] NZCA 563BETWEEN JOSEPH WHEELERAppellantAND THE KINGRespondentHearing: 26 July 2023 (further submissions received 18 September 2023)Court: Mallon, Moore and Palmer JJCounsel: D A Ewen and E T Blincoe for AppellantM J Lillico and Z Zhang for RespondentJudgment: 15 November 2023 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] The appellant, Joseph Wheeler, murdered Richard Wallace on the evening of19 July 2021. Mr Wheeler stabbed Mr Wallace in what he described as a "fit of rage"during a confrontation over a minor drug debt at Mr Wallace's home. Mr Wheeler fledthe scene, but later turned himself in, confessed and subsequently pleaded guilty. Hewas sentenced by Ellis J in the High Court to life imprisonment with a minimum periodof imprisonment (MPI) of 10 years.1[2] Mr Wheeler appeals his sentence. He seeks a determinate sentence rather thana life sentence. He says a life sentence is manifestly unjust because of the requirementwith such a sentence to impose an MPI of not less than 10 years.2 He says that, butfor this minimum requirement, his personal mitigating circumstances would havewarranted an MPI of no more than six to eight years. He seeks that his life sentencebe quashed and replaced with a finite sentence of 14 to 16 years' imprisonment withan MPI of six to eight years.The offending[3] Mr Wallace was 70 years old and lived by himself. On occasion, Mr Wheelersupplied him with cannabis. Mr Wheeler had also loaned Mr Wallace some moneyfor alcohol. From the loan and the cannabis, Mr Wallace owed Mr Wheeler about $80to $100.[4] Mr Wheeler made several attempts to obtain payment of the debt. On 12 and13 July 2021 Mr Wheeler contacted Mr Wallace by text and phone, and threatenedhim. Mr Wallace told Mr Wheeler he had made a mistake about when he wouldreceive his pension and could not pay Mr Wheeler straight away.[5] During the day of 19 July 2021 Mr Wheeler went to Wellington Hospital,seeking medication for mental health issues he was experiencing. Mr Wheeler becamefrustrated at how long the hospital was taking to get him medication. He arranged forMr Wallace to bring him the money at the hospital. Mr Wallace, however, cancelledthat arrangement, seeking to put it off until the next day.[6] At about 9.50 pm on 19 July 2021 Mr Wheeler travelled in a taxi with anassociate to Mr Wallace's home in Strathmore. He intended to assault Mr Wallace.He was frustrated because Mr Wallace had not paid him. When Mr Wheeler arrivedat Mr Wallace's house, Mr Wallace paid for the taxi and gave Mr Wheeler a small1 R v Wheeler [2022] NZHC 2151 [Sentencing notes].2 Sentencing Act 2002, s 103(2).amount of cash. Mr Wheeler entered Mr Wallace's home and rolled himself acigarette. Mr Wallace was sitting on his couch.[7] Mr Wallace explained to Mr Wheeler that he did not have the money to pay thedebt with him and that he would have to get the rest of the money from an ATM.Mr Wheeler became enraged. He approached Mr Wallace, kicking over a bottle ofwine on the ground next to Mr Wallace. Mr Wheeler grabbed a steel knife that wasstuck into the arm of the couch and swung at Mr Wallace. He stabbed Mr Wallacethree times, in what he later described as a "fit of rage".[8] Mr Wheeler immediately left the address with his associate, leavingMr Wallace on his back on the floor in a pool of blood making "gurgling noises".Neither Mr Wheeler nor his associate made any attempt to call for medical assistance.Mr Wallace died at the scene from loss of blood. The fatal wound had penetrated hislung.[9] Mr Wheeler turned himself in to the police two weeks later. He pleaded guiltyto the charge of murder following the preparation of psychiatric reports indicating thathe was fit to do so and had no basis for a defence of insanity. Mr Wheeler expressedremorse to the police. He admitted to the facts described and explained he had beenangry about not receiving the medical health assistance he believed he needed and atMr Wallace for not paying him.The offender[10] Mr Wheeler was 52 at the time of the offending. He was living in his car inWellington.[11] In interviews with health professionals, he reported being rejected by hisbiological mother and, after various foster placements, was adopted by a Pākehāfamily when he was young. He understood from his adoptive family that he wasrejected because of the circumstances of his birth (which are not necessary to outlinehere) and that his mother was an alcoholic. He never saw his mother again. Hereported being physically abused by his adoptive father but that he had a closerelationship with his adoptive mother until she died when he was 15.[12] Mr Wheeler reported having behavioural difficulties as a child. When he wasnine years old, he was placed in a "boys' home" after assaulting his adoptive fatherwith a tomahawk axe. Over the following years, he lived in several "boys homes"where he was bullied and physically abused. He struggled at school and did not learnto read or write. He was hyperactive and violent towards other students. He left schoolwhen he was 15. He then lived on the "on the streets" with another foster child.[13] Since then, Mr Wheeler has spent much of his life homeless or in prison. Hehas multiple convictions, largely of a relatively low-level nature, beginning with wilfuldamage when he was 15 years old. His most serious offending, prior to the presentoffending, involved convictions for wounding with intent to cause grievous bodilyharm for which he received a sentence of imprisonment of six years and six months.He has several convictions for assault.[14] Mr Wheeler has a lengthy history of mental health issues. He presented tomental health services when he was 16 years old, reporting that he was hearing voicesand suicidal. He was admitted to impatient care in 1992 at aged 23 for detoxication.He was discharged after five days and referred to alcohol and drug services. He wasreadmitted the following year for three days, and again referred to alcohol and drugservices.[15] He was admitted to hospital on occasions each year between 1997 and 2000.These appear to have been brief stays. On at least some of these occasions he reportedhearing voices and having thoughts of self-harm. On one occasion in 1998 hedescribed experiencing auditory hallucinations in the form of the devil telling him totake revenge on an ex-partner and that he was concerned he was a danger to the public.On another occasion he was reportedly aggressive and had thrown chairs around thewaiting room of the hospital emergency department. He was diagnosed withpoly-substance abuse, adjustment disorder with depressed mood and antisocialpersonality disorder. He was treated with an antipsychotic medication.[16] Between 2000 and 2001 he had contact with community psychiatrist services.He would often demand medication and act in an intimidating manner to medical staff.The primary diagnosis was a personality disorder and substance abuse disorder withfleeting periods of adjustment disorder and substance abuse psychotic disorder. It wassuggested that he was abusing prescription sedative medication and this was notassisting the situation.[17] Between 2001 and 2006 Mr Wheeler received mental health treatment inprison. After this, he was reported to have "settled dramatically in his mood, was nolonger experiencing auditory hallucinations or other symptoms of depression".From 2013 he was referred to Te Whare Marie Specialist Māori Mental Health Serviceand appears to have engaged with that service for a number of years.[18] He had inpatient care for a few days in 2017. He presented to the emergencydepartment in 2020 and was referred to his general practitioner. He was trespassedfrom his general practitioner's practice in 2021 because of his threatening behaviourto the reception staff. At some point in 2021, Mr Wheeler overdosed on apolysubstance and presented to the emergency department. He was said to beaggressive and was asked to leave and see the Community Mental Health Team. Hereported feeling stressed and angry. At some point that year, a plan was made for himto find a new doctor and to apply for social housing. He was on medication.[19] As noted, on the day of the offending Mr Wheeler presented at the emergencydepartment of Wellington Hospital seeking medication. He became angry at the timeit was taking for him to receive it, and reportedly left before he received all of it.[20] Following the offending, Dr Justin Barry-Walsh, a psychiatrist, was instructedby the Court to address whether Mr Wheeler was fit to stand trial. He concluded thatMr Wheeler was fit to stand trial. He recommended an assessment by acommunications assistant. He considered Mr Wheeler to have a high level of remorsefor his actions. His opinion on Mr Wheeler's mental health difficulties was as follows:I find no evidence of a clear cut mental illness in Mr Wheeler. I am of theview that his problems are primarily in the realm of personality functioningwith disturbance in his personality characterised by prominent problemsregulating his mood with associated difficulties managing anger, anxiety anda pattern of recurrent offending suggestive of a willingness to breach socialsanctions in order to achieve gains. As noted there is a possible contributionfrom putative cognitive difficulties.[21] Chriztine Gemmell, a clinical psychologist, was instructed to undertake acognitive assessment of Mr Wheeler. She concluded that Mr Wheeler did not meetthe criteria for an intellectual disability and his cognitive functioning, while "low", didnot raise any concerns about his ability to participate in the sentencing process.She considered that Mr Wheeler's hearing difficulties were likely to have influencedhis cognitive performance in her testing. She also noted that his "low functioning"was likely indicative of his poor school performance, early trauma and long-standingdrug abuse history. There were no concerns that would lead to issues in relation to thesentence imposed on Mr Wheeler. Like Dr Barry-Walsh, she considered thatMr Wheeler appeared to be remorseful regarding his offending.Sentencing[22] Mr Wheeler sought a sentencing indication. Ellis J indicated a sentence oflife imprisonment with an MPI of 11 years before discounts.3 In giving that indication,the Judge said that a guilty plea discount alone would take the end MPI down to10 years.4 The Judge acknowledged the submission for Mr Wheeler that, due to hismental health issues, a finite sentence might be available.5 While not entirely rulingthis out, the Judge indicated it did not seem a possible outcome on the informationbefore her.6[23] At sentencing, the key issue was whether a sentence of life imprisonmentwould be manifestly unjust.7 For Mr Wheeler, it was argued that, because an MPI of10 years would be manifestly unjust (that period being the minimum available for alife sentence), a life imprisonment sentence would be manifestly unjust. The Judgerejected this submission saying:8[29] The authorities by which I am bound are clear that sentences less thanlife imprisonment for murder are "likely to be reached in exceptional casesonly". As the law currently stands both the circumstances of the offence andof the offender must be taken into account when making that assessment.3 R v Wheeler HC Wellington CRI-2021-085-1706, 13 April 2022 at [5].4 At [4].5 At [6].6 At [6].7 Sentencing notes, above n 1.8 Footnote omitted.[30] Putting the question of the MPI to one side for a moment, there issimply no way that the circumstances of Mr Wallace's murder come close tothat exceptionality threshold. Mr Wallace was stabbed in his own home overthe smallest of debts and then left dying on the floor. And while I acknowledgethat your personal circumstances and the wider cultural context are in manyways tragic they, too, are regrettably far from exceptional, in terms of thethreshold we are talking about today.[24] The Judge went on to say that the mandatory 10-year MPI and a life sentencewent hand in hand.9 That is, if a life sentence was not manifestly unjust then nor wasthe mandatory 10-year MPI.10 This meant that the proper inquiry was on the justnessof the life sentence.11 The Judge also rejected a submission that the mandatory MPIwas only concerned with punishment, noting that, relevantly in Mr Wheeler's case,the purposes included community protection.12[25] The Judge accepted that, if a finite sentence were appropriate, Mr Wheeler'spersonal circumstances would warrant a greater discount than they would on asentence of life imprisonment.13 She considered, however, that on a sentence oflife imprisonment, a 10-year MPI was not manifestly excessive or disproportionate inMr Wheeler's circumstances, even stepping back and looking at the MPI separately.14Supreme Court consideration of Van Hemert[26] Mr Wheeler sought leave to appeal directly to the Supreme Court on thequestion of whether the 10-year MPI rendered his life sentence manifestly unjust. Hedid so because the Supreme Court had granted leave to appeal a life imprisonmentsentence in Van Hemert v R and Mr Wheeler wished to have his appeal heard at thesame time.15[27] Van Hemert was a case where the High Court, following a sentencingindication, had imposed a finite sentence on a charge of murder where the offender9 At [31].10 At [31].11 At [31].12 At [32].13 At [33].14 At [34].15 Van Hemert v R [2023] NZSC 116 [Van Hemert (SC)].had significant mental health issues.16 That was overturned in the Court of Appealwhich said:17[36] The presumption on s 102(1) of the Sentencing Act [2002] requires acompelling case to be established before an offender can be consideredeligible for a sentence less than life imprisonment in cases of murder. ThisCourt has previously explained that sentences less than life imprisonment formurder are "likely to be reached in exceptional cases only".[37] Before the presumption in s 102(1) is displaced, the Court must besatisfied the circumstances of both the murder and the offender are such thata sentence of life imprisonment would be "manifestly unjust". Thus, evenwhere the circumstances of the offender might weigh in favour of a finitesentence, the presumption of life imprisonment prevails where thecircumstances of the offending do not also displace the presumption andvice versa.[28] This was the approach Ellis J followed in sentencing Mr Wheeler. The Judgenoted that this was the current position and that the Supreme Court had granted leaveto an appeal on this issue in Van Hemert.18 The Supreme Court declined Mr Wheeler'sapplication for leave to appeal directly to that Court.19 It considered there were notexceptional circumstances that justified a direct appeal to the Supreme Court wherethat Court would not have had the benefit of this Court's views on Mr Wheeler'scase.20 Further, the proposed argument could be made in Mr Van Hemert's appeal inany event.21[29] In the period following the hearing in this Court on Mr Wheeler's appeal, theSupreme Court delivered its decision in Van Hemert.22 It considered this Court haderred in saying that both the offending and the offender's circumstances must compela conclusion of manifest injustice before the presumption of life imprisonment isdisplaced.23 Rather, the two elements are to be weighed together in assessing whether16 R v Van Hemert [2020] NZHC 3203.17 R v Van Hemert [2021] NZCA 261 (footnotes omitted). Sentencing was remitted to the High Courtto provide Mr Van Hemert with the opportunity to withdraw his guilty plea (given it had beenentered after a sentencing indication). He was subsequently sentenced in the High Court to lifeimprisonment with an MPI of 11 years and six months: R v Van Hemert [2021] NZHC 2877.18 Sentencing notes, above n 1, at [29] and [29], n 4.19 Wheeler v R [2022] NZSC 129.20 At [4].21 At [4].22 Van Hemert (SC), above n 15.23 At [56] per Glazebrook, O'Regan, Ellen France, and Kós JJ and at [111] per Williams J dissenting.a life sentence would be manifestly unjust.24 Manifestly meant that the injustice mustbe clear.25 Contributory mental impairment was a "highly relevant circumstance" inwhether a sentence less than life might be imposed, but the court must consider andweigh all relevant purposes and principles.26 That included the interests of the victimand community protection.27[30] On the facts before it, the majority accepted that Mr Van Hemert lacked aninherent propensity for violence and the offending would not have occurred but for theonset of an uncontrollable psychotic episode.28 While these considerations pointed infavour of finding that life imprisonment was manifestly unjust, public safetyconsiderations pointed the other way.29 The Court considered that Mr Van Hemert wasprone to relapse, well aware of what he had done and yet remained "troublingly"unremorseful, lacking both social support and self-insight.30 In these circumstances itconcluded that:[95] [I]t is not clearly unjust that extended parole eligibility and releaseconditions, and potential for recall, all measures calculated to provide greaterassurance of public safety, apply to Mr Van Hemert.[31] The appeal against the imposition of a life sentence was therefore unsuccessful.The majority allowed the appeal against sentence only to the extent that the MPI wasreduced from 11 years and six months to 10 years.3124 At [57] and [62] per Glazebrook, O'Regan, Ellen France, and Kós JJ and at [111] per Williams Jdissenting.25 At [62] and [78] per Glazebrook, O'Regan, Ellen France, and Kós JJ citing R v Rapira [2003]3 NZLR 794 (CA) at [121]. Williams J, who dissented, at [112] said manifest injustice was"relatively straightforward—the court must not impose the law's automatic and most severepunishment for the law's most serious crime if, in light of the circumstances of the offence and theoffender, that sentence would be plainly unjust".26 At [80] per Glazebrook, O'Regan, Ellen France, and Kós JJ.27 At [80]–[81] per Glazebrook, O'Regan, Ellen France, and Kós JJ.28 At [82] per Glazebrook, O'Regan, Ellen France, and Kós JJ.29 At [82]–[83] per Glazebrook, O'Regan, Ellen France, and Kós JJ.30 At [95] per Glazebrook, O'Regan, Ellen France, and Kós JJ.31 At [98] per Glazebrook, O'Regan, Ellen France, and Kós JJ. Williams J, in dissent, would havedirected further reports to enable the Court to properly assess Mr Van Hemert's future risk andpossible measures for managing the risk: at [146]–[147]. The Judge considered this was theproper approach under the New Zealand Bill of Rights Act 1990. The Judge considered thatMr Van Hemert's right to be free from discrimination (in respect of his psychiatric illness) wasengaged and his sentence should not have been longer than what was proportionate to hisculpability and (if risk exceeded that culpability) that which was demonstrably justifiable for riskmanagement purposes. If not, the sentence would not be demonstrably justified or, in other words,manifestly unjust.This appeal[32] On appeal, Mr Wheeler contends that the Judge erred in finding both thecircumstances of the offence and the circumstances of the offender had to beexceptional before the manifest injustice test could be met. He submits that, whileboth are taken into account, there is no requirement that they both be manifestly unjust.We agree. The Judge relied on her understanding of the law at the time for herapproach (recognising the issue was before the Supreme Court). As we have discussedabove, the Supreme Court found that approach to be in error.32[33] Mr Wheeler further contends that the Judge erred in finding that the source ofmanifest injustice must be the life sentence itself, rather than the 10-year MPI. Hesubmits that the correct approach to an assessment of manifest injustice involvescomparing the 10-year MPI with the MPI that would be set but for the 10-yearminimum. In failing to take this approach, Mr Wheeler submits that the Judge failedto give effect to his rights under the New Zealand Bill of Rights Act 1990 — namelys 9 (the right not to be subjected to torture or to cruel, degrading, ordisproportionately severe treatment or punishment) and s 22 (the right not to bearbitrarily arrested or detained).[34] This was a submission made to the Supreme Court in Van Hemert byTe Matakahi | Defence Lawyers Association of New Zealand, which was granted leaveto intervene in that case. It put the submission in the following way:33The differential between the result of the justifiable MPI and the ten-yearminimum under s 103 will thus inform the manifest injustice test in s 102.Any significant difference between the two will represent an arbitrarydetention: the offender will have completed the period of imprisonmentnecessary to give effect to the MPI criteria in s 103 and from that point onshould be allowed to demonstrate he or she is no longer a risk to communitysafety. That would include access to courses necessary to minimise risk.[35] This submission was not directly addressed by the majority in Van Hemert.34The majority did, however, consider the converse of this submission. That is, the32 Above at [29].33 Footnote omitted.34 Van Hemert (SC), above n 15. At [127]–[134], Williams J considered an analytical framework forhow a different right — the right to freedom from discrimination in s 19 of the New Zealand Billof Rights Act — might give rise to a disproportionate sentence.majority considered that the fact that parole eligibility would arise more than threeyears earlier under a finite sentence than under a life sentence, as well as the fact thatearly release would be without extended release conditions and the right of recall, wasrelevant to public safety considerations that rendered a life sentence not manifestlyunjustifiable.35 The majority also quoted the Minister of Justice's speech to the House,when introducing the Sentencing and Parole Reform Bill that led to the manifest unjustexception to life imprisonment for murder,36 which said:37A more flexible regime is applied to murder, requiring the court to take intoaccount mitigating and aggravating factors. The bill retains a strongpresumption in favour of life imprisonment for murder. However, in a smallnumber of cases, such as those involving mercy killing, or where there isevidence of prolonged and severe abuse, a mandatory life sentence is notappropriate. Under this legislation, the court will be able to consider a lessersentence. We can all think of cases where there were mitigating factors,perhaps the Janine Albury-Thomson case, which might have properly beenconsidered murder—intentional killing—but for which a mandatory sentenceof at least 10 years imprisonment would have been inappropriate. In the past,the jury has compensated for that inflexibility by finding a different verdict;in that case, manslaughter. This [reform] enables the jury to make an honestverdict, but for the sentence to be appropriate in all the circumstances[36] We accept a 10-year MPI that must, as a minimum, be imposed on a sentenceof life imprisonment may be relevant to the overall assessment of whether a sentenceof life imprisonment is manifestly unjust in a particular case. However, we do notaccept that Mr Wheeler's case is one where a sentence of life imprisonment ismanifestly unjust, taking into account the circumstances of his offending and hispersonal circumstances, for the following reasons.38[37] First, the circumstances of the offending point in favour of life imprisonment.Mr Wheeler stabbed Mr Wallace in his own home over the smallest of debts. He didso in a self-described "fit of rage", with force sufficient to penetrate Mr Wheeler'slung, and then left him lying on the floor in a pool of blood making "gurgling noises"without any attempt to call for medical assistance. While Mr Wheeler's verydisadvantaged background and history of mental health issues are compelling, this35 At [74]–[76], [89] and [93] per Glazebrook, O'Regan, Ellen France, and Kós JJ.36 Sentencing and Parole Reform Bill 2001 (148-1).37 Van Hemert (SC), above n 15, at [32] per Glazebrook, O'Regan, Ellen France, and Kós JJ quoting(14 August 2001) 594 NZPD 10910–10911 (emphasis added).38 Sentencing Act, s 102(1).violent, and essentially unprovoked, attack brings the need for community protectionto the fore.39[38] Secondly, Mr Wheeler's history indicates a long-standing propensity foraggression. He has a long history of relatively low level convictions for violence, aswell as the more serious violence that led to his sentence of six years and six months'imprisonment. As the Crown submits, his anger and violence has manifested across avariety of settings: the abuse of health clinic receptionists; aggression towardsemergency department staff; assault on his ex-partner; assault of police andCorrections officers; eviction from his flat because of yelling or screaming out inanger; and assault of two members of the public who Mr Wheeler perceived to havegiven him threatening stares. This propensity, alongside the serious escalation inviolence that the offending represents, indicates a public safety risk that requirescareful management.[39] Thirdly, the offending did not arise from a one-off psychotic event.Mr Wheeler's personality and substance abuse disorders, while contributing to theoffending, are long-standing and persistent. While Mr Wheeler has frequently soughtmedical help of his own initiative, the present offending demonstrates the risks hepresents when his aggression is not under control. In view of the fact that the presentoffending occurred despite Mr Wheeler's engagement with care services available inthe community and presentation to the hospital on the day of the offending, it isapparent that ongoing monitoring and oversight provided by the Parole Board under alife sentence will better and more effectively manage Mr Wheeler's public risk.[40] Lastly, we accept that Mr Wheeler showed remorse when interviewed byDr Barry-Walsh and Ms Gemmell. We accept that remorse evidences insight and thisis beneficial to rehabilitation prospects.40 But we cannot say that this insight providesus with sufficient confidence that Mr Wheeler will be able to take the steps necessaryto manage his risk without the monitoring and oversight of that rehabilitative progressthat a life sentence will bring.39 See Van Hemert (SC), above n 15, at [78], [81] and [83] per Glazebrook, O'Regan, Ellen France,and Kós JJ; and R v O'Brien (2003) 20 CRNZ 572 (CA) at [36].40 See Van Hemert (SC), above n 15, at [81] and [84] per Glazebrook, O'Regan, Ellen France, andKós JJ.[41] Overall, we are not satisfied that a life sentence is manifestly unjust in thiscase, taking into account that the MPI is 10 years. We consider it is not helpful tocompare this with an MPI that would be imposed on a finite sentence because we donot consider that a finite sentence is appropriate in this case. A life sentence, thatcarries with it a 10-year MPI, is the sentence that appropriately reflects accountability,denunciation, deterrence and community protection aims in this case. It gives effectto Parliament's intention that a life sentence for murder is the appropriate sentenceabsent a clear case of injustice.41 Absent such injustice, it cannot amount to adisproportionately severe punishment or arbitrary detention.Leave to appeal out of time[42] This appeal was brought out of time. The reason for the delay was thatMr Wheeler first applied for a leapfrog appeal to appeal directly to the Supreme Court.He wanted his case to be heard alongside Van Hemert. As noted, that application wasdeclined. The Crown does not oppose an extension of time. We accordingly grant anextension of time.42Result[43] The application for an extension of time to appeal is granted.[44] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent41 Sentencing Act, s 103.42 The Crown submissions suggest that an extension of time has been granted. There is nothing tosuggest it has and Courtney J, in a minute dated 16 March 2023, said the application for anextension of time was to be dealt with at the hearing. In any event, it is not opposed by the Crown.