WILSON v NEW ZEALAND POLICE [2022] NZHC 3087

WILSON v NEW ZEALAND POLICE [2022] NZHC 3087 [24 November 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-136[2022] NZHC 3087BETWEEN TANIA RAWINIA WILSONApplicantAND NEW ZEALAND POLICERespondentHearing: 22 November 2022Appearances: R A Peters for ApplicantL Fiennes for RespondentJudgment: 24 November 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 24 November 2022 at 11 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Tania Rawinia Wilson pleaded guilty to the following charges:(a) common assault (under the Crimes Act 1961);1(b) common assault (under the Summary Offences Act 1981) (x 4);2(c) resisting police (x 2);3(d) theft (under $500) (x 3);4(e) wilful damage;5 and(f) disorderly behaviour.6[2] On 6 September 2022, Ms Wilson was sentenced by Judge Couch in theChristchurch District Court to nine months' imprisonment for the above charges.7[3] While the charges are not all specified in the sentencing decision, it appearsMs Wilson was also for re-sentence on the following charges:(a) possession of a cannabis utensil;8(b) assaulting police (under the Crimes Act) (x 2);91 Crimes Act 1961, s 196 – maximum penalty of one year's imprisonment.2 Summary Offences Act 1981, s 9 – maximum penalty of six months' imprisonment or a fine of$4,000.3 Summary Offences Act, s 23(a) – maximum penalty of three months' imprisonment or a fine of$2,000.4 Crimes Act, ss 219 and 223(d) – maximum penalty of three months' imprisonment.5 Summary Offences Act, s 11(1)(a) – maximum penalty of three months' imprisonment or a fineof $2,000.6 Summary Offences Act, s 4(1)(a) – maximum penalty of $1,000 fine.7 Police v Wilson [2022] NZDC 17459.8 Misuse of Drugs Act 1975, s 13(1)(a) and (3) – maximum penalty of one year's imprisonmentand/or a fine of $500.9 Crimes Act, s 196 – maximum penalty of one year's imprisonment.(c) resisting police (x 2);10 and(d) theft (under $500).11[4] On these charges, the Judge re-sentenced Ms Wilson to three months'imprisonment, to be served cumulatively, resulting in an overall sentence of12 months' imprisonment. Ms Wilson now appeals that sentence.Factual and procedural background[5] On 2 August 2021, Ms Wilson was sentenced to 12 months' intensivesupervision and 80 hours' community work on charges of assaulting police (under theCrimes Act) and resisting police committed on 25 July 2021. On 8 October 2021, shewas then sentenced to a further 160 hours' community work for another charge ofassaulting police (under the Crimes Act), resisting police and possession of a cannabisutensil, all committed on 2 October 2021. On 6 January 2022, Ms Wilson was thensentenced to pay reparation of $19.99 for theft (under $500) committed on24 December 2021. She largely failed to comply with the sentence so an applicationto re-sentence her was made to be heard at the same time as the 6 September 2022sentencing on the subsequent charges.[6] On 14 May 2022, Ms Wilson took a tip jar containing $120 cash from a counterbeside the till in a restaurant in Picton. A short while later, Ms Wilson walked intoanother Picton restaurant where she stole a tip jar containing approximately $50 cashfrom the counter beside the till. She was identified using CCTV cameras. Theseevents gave rise to two charges of theft under $500.[7] Later that evening, at about 10.20 pm, Ms Wilson entered Seamus' Irish Bar.Also present was the victim, who recognised Ms Wilson as the person who stole thetip jars earlier in the day and attempted to take a photograph of her. Ms Wilsonapproached the victim and took her sunglasses before snapping them in half andthrowing them on the ground. She then punched the victim twice in the face and side10 Summary Offences Act, s 23(a) – maximum penalty of three months' imprisonment or a fine of$2,000.11 Crimes Act, ss 219 and 223(d) – maximum penalty of three months' imprisonment.of her head and pulled her hair. As a result, the victim sustained a swollen and cut lip.The bar manager asked Ms Wilson to leave but she refused and made threats to burnthe bar down. This gave rise to charges of common assault (under the Crimes Act)and wilful damage.[8] Two police constables arrived at the bar to arrest Ms Wilson. They attemptedto place handcuffs on Ms Wilson but she pulled away and refused. During the processof handcuffing her, Ms Wilson bit one constable on her right leg and the otherconstable on his right arm. She also kicked both officers several times and attemptedto reach for both of their tasers. As a result, the officers sustained scratches andbruises. For this offending, Ms Wilson was charged with two counts of resisting policeand two of assault (under the Summary Offences Act).[9] On 16 May 2022, Ms Wilson first appeared in Court. She was remanded onbail by consent on a number of conditions. At about 10 am on 18 May 2022,Ms Wilson walked into a Mobil station in Nelson. She went into the sandwich fridge,picked up two sandwiches and concealed them behind clothing. She left the stationwithout paying for the sandwiches, valued at $11. This gave rise to a charge of theft(under $500).[10] On 19 May 2022, her breach of bail was admitted and certified.[11] On 21 May 2022, Ms Wilson was at Christchurch Central Police Station. Shewas speaking to Police regarding her bail conditions after having a "required to arrestalert" entered on 20 May 2022 for a breach of bail. One of the constables toldMs Wilson she was under arrest for breach of bail and, with another constable, walkedMs Wilson through to the main reception area and directed her to sit down. Ms Wilsonbecame verbally abusive towards the constables. When Ms Wilson was told she wasunder arrest and being read her Bill of Rights, she started screaming verbal abuse.When the constables attempted to handcuff her, Ms Wilson actively resisted police bypulling her arms away and leaning forward to pull away with more force. When shewas placed in handcuffs, she became enraged and threw her legs and body around,attempting to kick both constables in the legs. She kicked one constable in the leftshin and scraped her heel down her shin. As she was taken to the custody suite sheattempted to kick the constable an additional three to four times. As a result, theconstable sustained a scrape to her shin and slight bruising. For this offending,Ms Wilson was charged with assault (under the Summary Offences Act).[12] On 23 May 2022, Ms Wilson was recorded as having breached her bailconditions by failing to report to Hokitika Police.[13] On 27 June 2022, Ms Wilson is also recorded as having breached her bailconditions by threatening violence to her landlord and consuming drugs. Bail wasdenied on the basis she had breached or allegedly breached her bail at least three timesover a short period of time and lacked a permanent address which had been checked.She was remanded in custody until 1 July 2022.[14] On 1 July 2022, Ms Wilson was granted bail at an address in Christchurch,approved by the Department of Corrections. She was subject to conditions not to offerviolence to the Police or any other person or property, not to be drunk in a public place,not to have contact with any victims, and not to leave the Canterbury province.[15] On 12 July 2022, Ms Wilson entered not guilty pleas to all charges.[16] At about 10.15 am on 23 July 2022, Ms Wilson was intoxicated at the Bridgeof Remembrance. She was attending the Freedom Rights Protest on Oxford Terrace,where she repeatedly tried to interfere with a speaker on the stage, including trying tograb his microphone and grab his ankles. The police removed a can of alcohol fromMs Wilson and arrested her for disorderly behaviour. During the arrest she refused toput her hands behind her back and yelled abuse at the sergeant. She tensed her armsup, refused to stand up and attempted to pull away from officers. These actions gaverise to a charge of resisting Police.[17] Ms Wilson was then taken to the Christchurch Custody Suite at40 Lichfield Street. In the course of police conducting a search, Ms Wilson yelledobscenities at the female officers conducting the search and began thrashing her armsand legs about. She was restrained for 20 minutes by two officers while another officercompleted the search. At one point, Ms Wilson ripped her arm away from one femaleconstable and pinched the searching officer on the hand. For this offending,Ms Wilson was charged with common assault under the Summary Offences Act.[18] On 25 July 2022, Ms Wilson was recorded as having breached her bailconditions, namely the condition not to offer violence. She sought bail beforeJudge Zohrab but it was declined and she was remanded in custody.[19] On 29 August 2022, Ms Wilson vacated her not guilty pleas. She insteadentered guilty pleas and was convicted of all charges. She was remanded in custodyfor sentence.District Court decision[20] On 6 September 2022, Ms Wilson appeared before Judge Couch for sentenceon all 12 charges and for re-sentence on a number of others.[21] The Judge described most of the charges for which Ms Wilson was for sentenceas relatively low-level matters. For the totality of the offending for the 12 charges, theJudge adopted a starting point of nine months' imprisonment.[22] The Judge applied an uplift of 10 per cent for the fact all the offending occurredwhile Ms Wilson was subject to sentences of community work and intensivesupervision, and for the fact the offending after 14 May occurred while she was onbail. He also identified Ms Wilson's "very extensive" history of theft, disorder andlow-level assault. While he acknowledged her most serious offending was dated, henoted she had continued to offend throughout her adult life. For this aggravatingfactor, he imposed a further uplift of 10 per cent.[23] The Judge then observed Ms Wilson had entered guilty pleas on all the chargesbut only after previously entering not guilty pleas. On that account, he provided adiscount of 20 per cent.[24] This resulted in an end sentence of nine months' imprisonment. This wasconstructed by imposing nine months' imprisonment on the charge of assault underthe Crimes Act and significantly lesser sentences on all other charges, to be servedconcurrently, save the disorderly behaviour charge on which Ms Wilson was convictedand discharged. In light of the apparent ineffectiveness of community-based sentencesand Ms Wilson's repeated breaches when she was last sentenced to home detention,the Judge did not consider any sentence less restrictive than imprisonment wasappropriate.[25] He then resentenced Ms Wilson to three months' imprisonment on the chargeof assaulting a constable with intent to obstruct, to be served cumulatively on thenine month sentence he imposed. The Judge cancelled the two sentences ofcommunity work. On the charge of possession of utensils, there was no re-sentence.On each of the other charges, the Judge imposed a sentence of one month'simprisonment to be served concurrently. Leave to apply for substitution of sentenceon all charges was denied. The Judge imposed standard release conditions and specialrelease conditions (as recommended in the pre-sentence report) until six months afterthe sentence end date.Principles on appeal[26] 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.12 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.13SubmissionsAppellant's submissions[27] Counsel for Ms Wilson, Mr Peters, submitted the sentence imposed wasmanifestly excessive and an appropriate end sentence would have been nine months'imprisonment. However, Mr Peters took no issue with the starting point despite12 Criminal Procedure Act 2011, ss 250(2) and 250(3).13 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at[36].submitting the Judge erred in referring to two charges of Crimes Act assault and oneof Summary Offences Act assault occurring on 14 May 2022 when the reverse was thecase.[28] He submitted the Judge failed to take into account the time Ms Wilson spent incustody from 14 May to 16 May 2022 and from 23 July to 25 July 2022. He submittedthe Judge also omitted to consider that Ms Wilson was subject to restrictive bailconditions (including the condition to report daily to the Police) for some five weeks.[29] In relation to credit for her guilty pleas, Mr Peters argued that Ms Wilsonpleaded guilty promptly once the correct charges were before the court, following theamendment of the more serious charges pursuant to discussion between the defenceand prosecution, and full credit of 25 per cent should have been provided.[30] Mr Peters also submitted the re-sentence of three months' imprisonment(cumulative) appeared to be dealt with "almost by way of an afterthought" and thatthe proper approach would have been to impose a concurrent sentence.[31] While in written submissions Mr Peters indicated that leave to apply for homedetention should have been allowed, that aspect of the appeal was not pursued, asMr Peters noted it was unlikely a suitable placement could be found before Ms Wilsonwas eligible to be released.Respondent's submissions[32] For the respondent, Ms Fiennes submitted the Judge appropriately consideredthe charge of common assault under the Crimes Act was the most serious. Withreference to what she submitted were analogous cases, Ms Fiennes submitted a startingpoint in the vicinity of six months' imprisonment may have been appropriate on thecommon assault charge. Taking account of the four charges of assaulting policecommitted across three separate incidents, Ms Fiennes submitted an overall startingpoint of nine months' imprisonment could not be considered outside the availablerange.[33] Ms Fiennes submitted the charges on which Ms Wilson was re-sentenced againappear to be relatively low-level offending which, in the absence of furtherinformation, is supported by the sentences originally imposed. She acknowledgedMs Wilson had completed approximately a quarter of the total community workimposed on these charges. However, Ms Fiennes submitted that, taking into accounther history of assaulting police and the fact this offending was separate to the indexoffending, an uplift of three months was within the available range.[34] Ms Fiennes submitted that credit of 20 per cent was sufficient to reflectMs Wilson's guilty pleas, given the strength of the evidence and the fact the pleas werenot entered at the first reasonable opportunity. She also submitted no credit wasappropriate to take account of the time Ms Wilson spent subject to bail as theconditions were not overly restrictive, she breached her bail and then committedfurther offences while subject to bail.AnalysisStarting point[35] Mr Peters does not take issue with the starting point and, while the nine monthsentence is attributed to the Crimes Act assault charge, it is clearly set having regardto the totality of the offending. I accept there is no guideline judgment for commonassault, although it has a maximum penalty of one year's imprisonment. Ms Fiennesreferred me to two cases but they both struck me as being slightly more serious thanthe case here of assaulting the woman in a bar.14 However, using those cases as areference, I would accept a starting point of around five months is available for thecharge of assault under the Crimes Act which has involved two punches to the headand minor injuries of a swollen and cut lip as a result.[36] However, as Ms Fiennes points out, there are also four charges of assaultingpolice in three separate incidents and these assaults include bites, kicks and a pinchwhich are reflected in the starting point. A starting point of nine months' imprisonmentto reflect the totality of the offending is within range, particularly noting these assaults14 Whichman v Police [2019] NZHC 3245; Tangimataiti v Police [2018] NZHC 2291.include the aggravating feature of reacting with violence against police who, inattempting to arrest her, were simply executing their duty.[37] Having confirmed the position taken by the appellant that the starting point iswithin range, I go on to consider the balance of Mr Peters' submissions.Re-sentencing[38] On 2 August 2021, Ms Wilson was sentenced to 12 months' intensivesupervision and 80 hours' community work on charges of assaulting Police (CrimesAct) and resisting Police. She was convicted and discharged on the charge of theft(under $500). In imposing intensive supervision, the Judge had indicated that onceMs Wilson had worked through her issues that needed to be addressed with a probationofficer to the satisfaction of the Probation Service, he would cancel that sentence.He imposed a special condition that Ms Wilson undertake and complete anycounselling, training or programmes directed by the probation officer and made anorder for judicial monitoring.[39] It is apparent that Ms Wilson not only failed to engage with Probation Servicesbut went on to commit further offending as well as the current offending. On8 October 2021 she was sentenced to 160 hours' community work for charges ofpossession of a cannabis utensil, resisting police and assaulting police (under theCrimes Act). The pre-sentence report writer advised that five judicial reports werecompleted in relation to her sentence of intensive supervision imposed on2 August 2021 and that all of them reflect negatively on Ms Wilson and her sentencecompliance. Departmental records indicate she failed to report on 10 occasions since25 February 2022, although in the circumstances Corrections had taken a lenientapproach to enforcement. The writer also advised Ms Wilson has 171.5 hoursoutstanding on her sentence of community work (that is, she had completedapproximately a quarter of the hours imposed).[40] It would appear from the Judge's sentencing notes that an application was madeto review Ms Wilson's sentences of community work and that it was on the basis thatshe had further offended in breach of those sentences that she was re-sentenced onthese earlier charges to three months' imprisonment to be served cumulatively.[41] I am satisfied that, taking into account Ms Wilson's history of assaulting policeand the fact this offending occurred separately from the balance of the charges, that athree month cumulative sentence was appropriate.Uplifts[42] No issue is taken with the uplifts for the fact Ms Wilson was subject to sentenceat the time and on bail for the offending after 14 May and for her previous extensivecriminal history including convictions for resisting police and assaulting police, and Ido not consider these further.Further discounts[43] Mr Peters submitted the Judge failed to take into account the time Ms Wilsonspent in custody from 14 May to 16 May 2022 and from 23 July to 25 July 2022. Healso submitted the Judge omitted to consider that Ms Wilson was subject to restrictivebail conditions (including the condition to report daily to the Police) for somefive weeks.[44] A reduction in sentence may be given to take account of time spent subject toa restrictive bail regime, such as a lengthy daily curfew.15 An evaluative assessmentof all the circumstances is required, although the factors listed in s 9(3A) of theSentencing Act 2002 may be of assistance.16 Here, the restrictions Ms Wilson wassubject to were not overly restrictive and were relatively standard conditions gearedtowards her risks relating to alcohol and violence. Ms Wilson also breached her bailconditions four times in a short period — first as was admitted on 19 May 2022, thenon 23 May by failing to report to Hokitika Police, on 27 June for threatening violenceto her landlord and consuming drugs, and then on 23 July by offering violence. Nodiscount was required for time subject to bail conditions. In terms of the timeMs Wilson spent on pre-sentence detention, this cannot be taken into account in15 Bennet v R [2012] NZCA 173 at [25].16 See Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622 at 49; and R v Tamou [2008] NZCA 88at [19].determining the length of any sentence of imprisonment.17 The Judge therefore didnot err in not having done so.[45] Mr Peters also argued Ms Wilson pleaded guilty once the correct charges werebefore the court, following the amendment of the more serious charges, and thereforewas entitled to receive a full 25 per cent discount for her pleas. He did not provideany further details on the amendments, noting he was not counsel in the District Court.[46] On 12 July 2022, Ms Wilson entered not guilty pleas to all charges. On29 August, Ms Wilson vacated her not guilty pleas and entered pleas of guilty to allcharges.[47] From a review of the charging documents, it appears two charges of assaultinga constable with intent to obstruct them in the execution of their duty (under s 192(2)of the Crimes Act, carrying a maximum penalty of two years' imprisonment) wereamended to charges of assault under s 9 of the Summary Offences Act (carrying amaximum penalty of six months' imprisonment or a fine of $4,000). It is not clear onwhat date these charges were amended. A charge of theft (under $500) is also recordedas being amended on 29 August 2022 but the details of the original charge are notavailable.[48] A 25 per cent discount is the maximum discount which can be afforded forearly guilty pleas. There should be no expectation that 25 per cent is always affordedon entry of guilty pleas and timing is not the only consideration.18 Guilty pleas whichwere not entered at the first reasonable opportunity or which are entered in the face ofstrong evidence may receive less. Here, there was nothing to suggest Ms Wilson hada defence to the charges. Furthermore, only two or three of the 12 charges wereamended prior to her entering guilty pleas. There is nothing to say why she could nothave entered guilty pleas on the balance of the charges at an earlier stage or indicatedher willingness to plead guilty to an amended charge on those that were reduced inseriousness.17 Sentencing Act, s 82. For completeness, I note Ms Wilson has been in custody continuously from23 July 2022 and not only until 25 July as suggested by Mr Peters.18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].[49] In all the circumstances, I can see no error in the Judge's decision to afford a20 per cent discount for guilty pleas.Result[50] The appeal against sentence is dismissed.Solicitors:Alpers & Co, ChristchurchRaymond Donnelly & Co., Christchurch