WILSON v NEW ZEALAND POLICE [2019] NZHC 1110

WILSON v NEW ZEALAND POLICE [2019] NZHC 1110 [20 May 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI 2019-483-1[2019] NZHC 1110BETWEEN RIKKI AARON WILSONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 May 2019Counsel: E C Copeland for AppellantC B Wilkinson-Smith for RespondentJudgment: 20 May 2019JUDGMENT OF MALLON JIntroduction[1] Rikki Wilson pleaded guilty to two charges of breaching a protection order andone charge of breaching release conditions.1 He was sentenced in the WhanganuiDistrict Court on 4 March 2019 to imprisonment for 11 months and one week. Thesentence was also subject to release conditions that included a condition preventingMr Wilson from going within a mile of the victim's address without writtenpermission from a probation officer following consultation with the complainant.[2] Mr Wilson appeals against his sentence. He contends the starting point adoptedby the District Court was too high and led to an end sentence that was manifestlyexcessive.[3] The sentence appeal also contended that GPS monitoring of the releasecondition was unlawfully imposed. This issue arose because Mr Wilson, who was1 Police v Wilson [2019] NZDC 4087 per Judge Crayton. Domestic Violence Act 1995, s 49(breaching protecting order); maximum penalty: three years' imprisonment. Sentencing Act 2002,s 96 (breaching release condition); maximum penalty: one years' imprisonment or a $2,000 fine.about to be released from his sentence, had apparently been told that there was to beGPS monitoring of his movements. However, it is clear that the Judge did not imposeGPS monitoring and accordingly this issue falls away.Summary of offending[4] Mr Wilson and the complainant commenced a relationship sometime aroundAugust 2016. The complainant became pregnant with their child shortly thereafter.Mr Wilson was physically violent towards the complainant during their relationship.In May 2017 he was sentenced to 18 months' imprisonment for a range of offending,including common assault (family violence) on the complainant.2 In November 2017,while Mr Wilson was in prison, the complainant obtained a Protection Order againsthim.[5] On 28 March 2018, Mr Wilson was sentenced to four months' imprisonmentfor breaching the Protection Order on 7 and 8 of January 2018. On the first of thoseoccasions he went to the complainant's address, left after being told to leave, returned,knocked on her bedroom window at 11.30 pm when she awoke and told him to leaveagain. The next morning he left what the sentencing Judge described as "nastymessages" on her phone.3[6] Mr Wilson was released from prison and soon after he breached the ProtectionOrder again on 3 and 15 May 2018. On these occasions he sent multiple text messages.They included a threat to kill the complainant. This gave rise to convictions forthreatening to kill her as well as for the Protection Order breaches. The sentencingdid not take place until 16 November 2018. At that time Mr Wilson was sentenced to12 months' imprisonment, with a special release condition that he was not to associatewith or contact the complainant without the prior written approval of a ProbationOfficer.2 Police v Wilson [2017] NZDC 10971. He was sentenced on two charges of common assault (oneof them family violence), possessing an offensive weapon, unlawfully in building, two charges ofdriving while disqualified (3rd of subsequent), disorderly behaviour, possession ofmethamphetamine, recklessly operating a motor vehicle, dangerous driving, failing to stop, andtwo charges of breaching release conditions.3 Police v Wilson [2018] NZDC 6151 at [2].[7] That sentence equated to time served. The complainant was advised on16 November 2018 that Mr Wilson had been released from jail with the special releasecondition. The following evening, at 7.30 pm, Mr Wilson called the complainant froman unknown number and asked, "how's my boy doing". The complainant recognisedMr Wilson's voice and reminded him about the Protection Order and that he was notto call her again. Mr Wilson said "take care" and then hung up. On 26 November2018, Mr Wilson sent a text message to the complainant from a number she did notrecognise saying, "Can I ask you a question". The complainant replied asking who itwas and was told, "If I say I would be incriminated, may I ask a question please". Thecomplainant did not respond further, and Mr Wilson sent three further short messageswith the last saying, "I love you".[8] The victim impact statement sets out the history of the relationship betweenthe complainant and Mr Wilson and his history of physically and psychologicallyabusing her. The complainant notes that Mr Wilson has been imprisoned on threeseparate occasions for offending against her and that his pattern is to contact her almostimmediately upon release. She describes the heavy toll she is under from the anxiety,distress and dread for her and her child's safety that Mr Wilson's continued actionshave caused.Personal circumstances[9] Mr Wilson is 47 years old. In addition to the above offending against thecomplainant, he has two convictions for breaching a protection order and two forcommon assaults (family violence). These convictions were in 2014 and related to adifferent complainant. He has multiple other convictions for a range of otheroffending. They include possessing a firearm without a licence, breaching releaseconditions and other assaults. They also include driving, dishonesty and drugoffending. He has been sentenced to imprisonment on multiple occasions.District Court sentencing[10] The District Court Judge considered the aggravating factors were:(a) Mr Wilson had repeatedly breached the Protection Order. This was thefifth and sixth breach of protection order against the same complainantwithin just over a year of it being put in place. This offending had beenpretty much constant when Mr Wilson was not in prison and it hadpreviously included threats of violence.(b) The offending involved significant harm to the complainant. Althoughthe present charges did not involve physical violence, it was an act ofcontrol over the complainant, intended to indicate that Mr Wilson couldnot be prevented from contacting the complainant.[11] The Judge considered a starting point of 14 months' imprisonment wasappropriate for the two Protection Order breaches and the breach of release conditions.As I read the Judge's remarks, this took into account the above factors, as well asMr Wilson's other breaches of protection orders against a different complainant.4 TheJudge added an uplift of one month for the fact Mr Wilson was still on sentence(release conditions) for the same offending.5 He then applied a 25 per cent discountfor Mr Wilson's guilty plea. This meant an end sentence of eleven months and oneweek's imprisonment.[12] Home detention was rejected because of Mr Wilson's lack of impulse controland his poor compliance with sentence release conditions. The conditions imposed onthe sentence included that Mr Wilson could not contact the complainant and was notto enter or go within one mile of the complainant's address without the writtenpermission of the probation officer after consultation with the complainant.Approach on appeal[13] First appeals against sentence are governed by s 250 of the Criminal ProcedureAct 2011. An appeal must be allowed if the Court is satisfied, for any reason, thatthere is an error in the sentence imposed on conviction, and a different sentence ought4 Police v Wilson, above n 1, at [15]-[16]. The Judge said that the starting point took into accountMr Wilson's history. He noted this included other serious violence but said he was not includingan uplift for "that other aspect of your offending".5 At [17].to be imposed. In considering whether there has been an error, the test of whether thesentence is "manifestly excessive" continues to be instructive.6 In determining that,the focus is on the end sentence rather than the process by which it is reached.7Analysis[14] One of the appeal grounds had been that the Judge had erroneously consideredthat Mr Wilson had assaulted the same complainant for which he was sentenced inMay 2017. The sentencing remarks for the sentencing on 24 May 2017 have beenobtained. It is apparent from those remarks that his offending at that time included anassault on the complainant, who at that time was pregnant with their child. Thisground of appeal, like the GPS monitoring point, therefore falls away.[15] Counsel for Mr Wilson submits that the starting point adopted in the DistrictCourt was too high. He emphasises that the breaches occurred because Mr Wilsonwanted contact with his 18 month old son (Mr Wilson said he thought the complainantand their son were intending to leave the country) and the contact was by telephonerather than in person and was friendly in tone.[16] In support of this submission, reliance is placed principally on G v Police.8There the High Court Judge considered a starting point of eight or nine months wasappropriate for an offender who was being sentenced for his fourth and fifth protectionorder against the same person. The breaches involved sending letters and concerneddifficulties with access to their children.[17] That case is not on all fours with the present. None of the protection orderbreaches had involved threats of violence. The Judge characterised the letters thedefendant had sent as sad and remorseful rather than threatening. The complainantwas not fearful of the defendant to the extent that she did not want to have anything todo with him at all. The defendant's conviction history was also considerably lessextensive than that of Mr Wilson and included a break of offending between 2009 and2015. The defendant had also relocated to a place away from the complainant. The6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].7 At [8].8 G v Police [2019] NZHC 411.Judge considered the defendant had "gained new insight into his offending and [was]less likely to re-offend in the future".9[18] The factors the Judge relied on to bring the starting point down from the15 month period adopted by the District Court are not present in this case.10 Mr Wilsonhas persistently breached the Protection Order. His breaches have occurred soon afteron his release from prison. He has an extensive background of offending which showsa disregard of the law. He has been violent to the complainant and she is fearful ofhim. The fact that he may have wanted contact with his child provided no excuse forhis actions. There were proper channels for this contact and he would have used them,rather than contacting the complainant, if he had any inclination to rehabilitate.[19] I consider a 15 month imprisonment sentence, before the discount for a guiltyplea, was within range taking all the aggravating features of the offending and thepersonal aggravating features of the defendant into account. I note in particular theCourt of Appeal decision in Anderson v R where an 18 month starting point wasupheld.11 This case does not have the escalating level of seriousness in the nature ofthe breaches as that case did. But it has other serious features which warrant the15 months taken. Of particular concern is the background of violence (threats andactual violence) and the immediacy of the contact on release from prison. A deterrentsentence was necessary.Result[20] The appeal is dismissed.Mallon J9 At [37].10 I consider it is better to focus on the 15 month period as I was a little unclear about some of theJudge's remarks as to what was being taken into account and what was not. I also consider anuplift for the fact that the offending was committed while subject to release conditions riskeddouble counting for the fact that the 14 month starting point included the charge of breachingrelease conditions.11 Anderson v R [2016] NZCA 346 at [26]-[27].