WESSELS v POLICE [2023] NZHC 909

WESSELS v POLICE [2023] NZHC 909 [24 April 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-7CRI-2023-409-8[2023] NZHC 909BETWEEN NICO WESSELSAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2023Appearances: C M Ruane for the AppellantP Brand and L Fiennes for the RespondentJudgment: 24 April 2023JUDGMENT OF HARLAND JIntroduction[1] On 16 January 2023, Mr Wessels was sentenced by Judge M Callaghan to 25months' imprisonment1 on the charges of burglary,2 accessing a computer systemwithout authorisation (attempt),3 assault on a person in a family relationship,4 andcontravening a protection order (x2).5 Mr Wessels appeals this sentence on the basisthat it was manifestly excessive.1 New Zealand Police v Wessels [2023] NZDC 499.2 Crimes Act 1961, s 231; maximum penalty 10 years' imprisonment.3 Crimes Act, s 252; maximum penalty 1 year imprisonment.4 Crimes Act, s 194A; maximum penalty 2 years' imprisonment.5 Family Violence Act 2018, ss 90 and 112; maximum penalty 3 years' imprisonment.Principles on appeal[2] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.6 The focus is not on the process by which the sentence was reached, buton the correctness of the end result.7 In making this assessment, appellate courts donot interfere with the legitimate exercise of judicial discretion or indulge in meretinkering with the sentence.[3] This appeal is slightly unusual because Mr Ruane submits that a restorativejustice conference was not explored at all by the Court and a s 27 report had beenrequested by then defence counsel but had not been provided. These matters, coupledwith the arithmetical error in the end calculation of the sentence by the Judge, meanthat a sentence of home detention could possibly have been considered but was not.Mr Ruane submitted the appeal should therefore be allowed and remitted back to theDistrict Court under s 251(c) of the Criminal Procedure Act 2011 for these matters tobe rectified and attended to. This would essentially involve a resentencing process tobe undertaken in due course.[4] The respondent opposes the appeal and submits that the outcome cannot besaid to be manifestly excessive. Rather, the end result is generous and within range.For these reasons, Mr Brand submitted the appeal should be dismissed.Facts[5] On 2 February 2022, Mr Wessels was served with a final protection order,issued by the District Court. The applicant for the order was the victim in the offendingthat followed. She was Mr Wessels' ex-partner.6 Criminal Procedure Act, ss 250(2) and 250(3).7 Ripia v R [2011] NZCA 101 at [15].First incident[6] This incident gave rise to the charges of burglary, access to a computer systemwithout authorisation and assault on a person in a family relationship.[7] At around 11.30 am on 4 February 2022, Mr Wessels entered the victim'saddress unannounced and without her consent. He refused to leave when asked. Thevictim left but returned shortly after. She found Mr Wessels was still inside.[8] Mr Wessels took the victim's phone and demanded she unlock it. The victimleft the room but Mr Wessels followed her. He attempted to pry her fingers open inorder to unlock the phone and access personal information in the Snapchat app. Afterkicking Mr Wessels away, the victim fled the house and went down the driveway. MrWessels followed and grabbed her face. He then threatened her before leaving theaddress.[9] The victim sustained minor injuries, being a cut to her finger and bruising to aforearm.Second incident.[10] In mid-October 2022, while a protection order was in place, Mr Wesselscontacted the victim on Snapchat, despite the victim telling him not to contact herunless it related to a damaged window at the address. He began abusing her andmaking personal accusations. This amounted to psychological abuse and was a breachof the protection order.Third incident[11] On 3 November 2022, while a protection order was in place and Mr Wesselswas on bail, the victim was at her home with her young daughter. Mr Wessels accessedthe property via a closed gate and approached the external door to the bedroom. Hespoke to the victim through the window and became abusive, accusing her of being apolice informant. He attempted to open a small window next to the door but wasthwarted by a safety latch. This was a breach of the protection order.District Court decision[12] The Judge addressed elements of Mr Wessels' pre-sentence report, includingrelevant aspects of his childhood leading to difficulties with relationships and allegedabuse. Mr Wessels had expressed that he was open to rehabilitative interventions,including contacting He Waka Tapu and undertaking a course during his remand incustody. He had also written a letter of apology.[13] The Judge noted Mr Wessels' previous convictions for breaching protectionorders, assault and making threats. He referred to the victim impact statement whichdetailed the long-lasting effects of the relationship with Mr Wessels on the victim andher child.[14] The Judge took the burglary as the lead offence and considered the breakinginto a house with a person being present was aggravated by the fact a protection orderwas in place. A starting point of 21 months was adopted. A three month uplift wasapplied for the access to a computer system via an assault. The two later protectionorder breaches attracted a further eight month uplift.[15] The Judge commented that some offending occurred while Mr Wessels was onbail but made no explicit uplift for this.[16] The Judge considered he had reached a starting point of 34 months'imprisonment. His Honour considered this appropriate from a totality perspective.This is incorrect as the original starting point and uplifts only amount to 32 months'imprisonment.[17] Discounts of 15 per cent and 10 per cent were provided for Mr Wessels'delayed guilty plea and remorse respectively.[18] Rounding down, this led to a sentence of 25 months' imprisonment.Concurrent sentences were imposed for the other offending.Discussion[19] Submissions were filed by Ms Trinder, counsel for Mr Wessels in the DistrictCourt, and by Mr Ruane who appeared for Mr Wessels at the appeal hearing. I alsoreceived submissions from Mr Brand for the respondent and was provided with a letterfrom the complainant and an affidavit prepared by her both dated 21 March 2023. Thecomplainant's affidavit outlines the following:(a) she was unaware Mr Wessels had expressed a desire to apologise and makeamends;(b) she was not informed of the option for restorative justice or the restorativejustice process. She considers this took away her right to have her wishesheard and removed the possibility for an apology and amends to be madeto her. She considers this has added to the emotional distress she hassuffered and failing to present her with the option of restorative justicetook away her choice;(c) she raised concerns about inaccuracies in the summaries of facts;(d) she wants Mr Wessels to be given the chance to make amends andrehabilitate in a way that is beneficial to them both and anyone else whohas been impacted;(e) she would like these actions to be taken through the restorative justicesetting where she wishes to request support through both relationshipcounselling and individual counselling;(f) she would like to do so with Mr Wessels serving a home detention orrehabilitative sentence at her address; and(g) she does not want contact to be restricted or for she and Mr Wessels to beseparated against their wishes as she does not believe this to be conduciveto facilitating rehabilitation or reconciliation and, therefore, neither in hersor Mr Wessels best interests.[20] The matters referred to in the complainant's affidavit, which I infer sheprepared and filed herself, are in conflict with the victim impact statements she madeon 10 February 2022, 3 November 2022 and 4 January 2023. It appears from one ofthe statements (the most recent) that the complainant is studying psychology atuniversity. I mention this because the complainant may be more alive to the issuesengaged in offending of this kind and potentially what rehabilitative interventions maybe possible.[21] I observe however that the victim impact statement made by the complainanton 4 January 2023 was made very close in time to Mr Wessels sentencing. Even takinginto account the reference in the affidavit to her not having been advised of his desireto apologise and make amends or being aware of restorative justice, the matters raisedin it are of concern and would have indeed been of concern to the District Court Judgewhen sentencing.[22] Although the appellant's general submissions (those by Ms Wessels' previouslawyer) took issue with the burglary charge being the lead charge, and although thisissue was addressed by counsel for the respondent, it did not feature as being the mainreason or indeed a reason at all advanced during the appeal hearing. Had I beenrequired to determine this, I would have had no difficulty finding that the burglarycharge was the lead charge. But, in any event, given the way the Judge dealt with theindividual charges before taking into account mitigating matters, Mr Ruane correctlynoted the outcome would have been the same.[23] I focus instead on the appeal as it was argued at the hearing, which addressedthe lack of restorative justice and the impact the absence of the s 27 report may havehad on the end sentence.Restorative justice[24] Section 24A of the Sentencing Act (the Act) provides:24A Adjournment for restorative justice process in certain cases(1) This section applies if—(a) an offender appears before the District Court at any time beforesentencing; and(b) the offender has pleaded guilty to the offence; and(c) there are 1 or more victims of the offence; and(d) no restorative justice process has previously occurred in relation tothe offending; and(e) the Registrar has informed the court that an appropriate restorativejustice process can be accessed.(2) The court must adjourn the proceedings to—(a) enable inquiries to be made by a suitable person to determinewhether a restorative justice process is appropriate in thecircumstances of the case, taking into account the wishes of thevictims; and(b) enable a restorative justice process to occur if the inquiries madeunder paragraph (a) reveal that a restorative justice process isappropriate in the circumstances of the case.(emphasis added)[25] Section 24A is expressed in mandatory terms. In this case, Mr Wessels pleadedguilty to the offences, there was a victim, there was no suggestion that a restorativejustice process had previously occurred in relation to the offending, neither is itcontended that an appropriate restorative justice process could not be accessed.[26] Mr Ruane advised that he had not seen a transcript of the hearing at which thepleas were entered, but he had inspected the District Court files. I have been providedwith a copy of the charging documents from the District Court file. They reveal that,in respect of all charges apart from the breach of protection order between 12 and 19October 2022 (CRN 23009000373), Mr Wessels vacated his not guilty plea to eachcharge and entered guilty pleas. The file notes that he was convicted and remanded incustody to appear for sentence on 16 January 2023. A pre-sentence report withappendices was directed. In relation to the breach of protection order (CRN23009000373), a guilty plea was entered to the charge on 16 January 2023, the date ofsentencing. It appears there may have been a guilty plea entered prior on 13 January2023 via AVL.[27] It is clear from the charging document records that no consideration was givento s 24A of the Act.[28] Mr Ruane observed that, in her sentencing submissions to the District CourtJudge, Ms Trinder addressed the topic of remorse via restorative justice underparagraphs 14 to 16, but only referred to remorse. It is accepted that this was no morethan an oversight because Mr Wessels has advised that he was willing to take part in arestorative justice process. It is also clear from the complainant's position now thatshe was willing to take part in restorative justice as well.[29] Mr Ruane also submitted that the failure to refer the matter to restorative justicemeant that, in accordance with s 8(j) of the Sentencing Act, the Court could not fulfilits obligation to take into account any outcomes of restorative justice processes.Section 8(j) provides:8 Principles of sentencing or otherwise dealing with offendersIn sentencing or otherwise dealing with an offender the court—(j) must take into account any outcomes of restorative justice processes thathave occurred, or that the court is satisfied are likely to occur, in relationto the particular case (including, without limitation, anything referred to insection 10).[30] Although accepting that any discount available to Mr Wessels, if there had beena restorative justice conference, could only have amounted to something in the orderof five to 10 per cent, despite the generous deduction the Judge afforded for remorse,it is possible that this may have been increased had there been a conference which hada successful outcome.[31] Mr Brand submitted that any deduction for restorative justice would be largelyacademic given the generous deduction the Judge allowed for remorse. Mr Brand alsosubmitted that there is nothing to prevent restorative justice occurring now, but thatsubmission ignores the mandatory nature of s 24A and the provisions of s 8 to whichI have referred.[32] While it is impossible to predict whether a restorative justice conference willbe convened, section 24A makes it clear that referral must be made for it to at least beconsidered. As well, despite the nature of the charges in this case, s 24A(2)(a) providesthat the option of restorative justice should also be put to a victim for them to considerwhether they wish to participate in that process or not. The referral to restorativejustice should have been directed when Mr Wessels pleaded guilty to the charges. Thisdid not occur. The sentencing Judge did not note that this had not occurred. There isno evidence that it was drawn to his attention by counsel as it ought to have been.[33] Given the complainant's current view, as expressed in her recent affidavit, itwould be unlikely that such a conference would not take place. I say unlikely becausethe current affidavit is a complete change of heart and somewhat at odds with thecomplainant's expressed views in her victim impact statement of 4 January 2023.Given the dynamics of family violence, the restorative justice coordinators need tocarefully assess the situation but, in my view, the complainant would have to be giventhe option to participate. This is particularly so given the provisions of s 8(f) of theSentencing Act which requires the Court to take into account any information providedto it about the effect of the offending on the victim, although that information can alsobe provided in a victim impact statement.[34] If a restorative justice process does not take place, then the questions for anappeal court are whether such a process would have been available and, if so, whetherit would have made a difference.8 In this case, I am satisfied restorative justice wouldhave likely been available given the matters referred to above. I return to thesignificance of this process failure on the outcome of the appeal after I have consideredthe matters relating to the s 27 report.Section 27 report[35] Mr Ruane was advised by Ms Trinder that a s 27 report was sought and sheprovided him with copies of an email trail between herself and the report writer. Thereappears to have been a miscommunication about when the s 27 report was due.However, the important point is that the report had not been provided to Ms Trinder8 Moore v R [2019] NZCA 205 at [11].by the time of the sentencing hearing. The report was purportedly forwarded to MsTrinder after the sentencing date but Mr Ruane advised that the email did not in factattach the report, which has only been made available to him recently.[36] The appropriate course of action at the sentencing hearing would have been forcounsel to apply for it to be adjourned. It is not clear whether this option was explainedto Mr Wessels.[37] Mr Brand's point was that the presentence report covered detailed matters ofbackground that were sufficient for the Judge to understand the matters that might becovered by a s 27 report. However, Mr Ruane's point was that a s 27 report willnormally provide a great deal more background and assistance to the Court whichwould add to the matters included in the presentence report.[38] I agree with Mr Ruane. It is impossible to tell, without a proper considerationof the s 27 report, how much more information that report would have provided andwhat impact, if any, it would have had on the sentence. But, given that the startingpoint, if correctly calculated, would have amounted to 32 months' imprisonment, anysmall deduction over and above that which had already been taken into account couldwell have brought the end sentence within the range where home detention could havebeen considered.Result[39] I am persuaded that the appeal should be allowed. Although the end sentencemay only be adjusted in part, it is impossible to say that it is not manifestly excessivewithout the information referred to above being available.[40] That being the case, I am persuaded that the appropriate course of action is toremit the sentence back to the sentencing Judge under s 251(2)(c) of the CriminalProcedure Act 2011. I direct that:(a) there be a referral under s 24A of the Sentencing Act to a restorative justicecoordinator to consider whether restorative justice can proceed;(b) if a restorative justice conference does proceed, the outcome of thatconference is to be provided to the sentencing Judge to consider whethera further mitigating deduction for it is warranted;(c) any s 27 report on behalf of the defendant is to be filed in the District Courtso that the sentencing Judge can consider whether any additionaldeduction is warranted; and(d) after considering these matters, the sentencing Judge must decide whetherto set the sentence imposed aside under s 251(2)(a) of the CriminalProcedure Act or vary the sentence as provided for under s 251(2)(b). Atthe very least, a variation will need to occur to reflect the error in thecalculation of the starting point.____________________Harland JSolicitors:C M Ruane, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.