IN THE COURT OF APPEAL OF NEW ZEALAND
CA725/2012
[2014] NZCA 584
BETWEEN
TREVOR JOHN MOMO WILSON
Appellant
AND
THE QUEEN
Respondent
Hearing:
12 November 2014
Court:
Miller, Lang and Clifford JJ
Counsel:
K H Cook for Appellant
M J Lillico for Respondent
Judgment:
1 December 2014 at 3.30 pm
JUDGMENT OF THE COURT
A
Application for an extension of time granted.
B
The appeal against conviction is dismissed.
C
The appeal against sentence is allowed.
D
The sentences of imprisonment are quashed and sentences of nine months
home detention on each charge are imposed in their place. Those sentences
are subject to the conditions specified at [29] of the reasons.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
WILSON v R CA725/2012 [2014] NZCA 584 [1 December 2014]
[1]
Mr Wilson pleaded guilty in the High Court to charges of supplying the class
A controlled drug lysergide (LSD), conspiring to sell a class C controlled drug,
namely party pills, selling cannabis, conspiring to sell cannabis and possession of
LSD. The guilty pleas followed a sentence indication hearing before Mackenzie J on
30 July 2012.1
[2]
On 13 September 2012, Mackenzie J sentenced Mr Wilson to an effective
term of two and a half years imprisonment.2
[3]
Mr Wilson originally appealed against conviction but abandoned that appeal
at the commencement of the hearing in this Court. The appeal against conviction is
accordingly dismissed.
[4]
Mr Wilson now applies for an extension of time to appeal against the
sentence the Judge imposed. Given the view we take of the merits of the appeal, we
grant the application for an extension of time.
The offending
[5]
The charges to which Mr Wilson pleaded guilty arose out of a wide-ranging
police undercover operation.
The operation revealed that Mr Wilson and two
associates sold five tabs of LSD to an undercover police officer on 7 October 2010.
Mr Wilson was the person who supplied the drugs to the officer, but the sale had
been arranged earlier by one of his associates. Mr Wilson received the sum of $200
for the drugs. He later told the police he did not make any money out of the
transaction, and was just helping his associate out.
[6]
During the course of the operation the police intercepted telephone
communications between Mr Wilson and his associates. These revealed that during
November 2010, Mr Wilson had purchased party pills for himself and his associates.
These communications gave rise to the charge of conspiracy to supply party pills.
1
2
R v Wilson HC Nelson CRI-2012-042-684, 30 July 2012.
R v Wilson [2012] NZHC 2356.
[7]
The
intercepted
telephone
communications
also
revealed
that
on
22 November 2010, Mr Wilson had obtained eight one ounce bags of cannabis to sell
to others. These contained a significant amount of leaf material, and this meant
Mr Wilson had been required to sell one bag of cannabis for a reduced price.
Mr Wilson discussed the poor quality of the cannabis with his associate, and said he
had made a decision not to use that particular supplier again. These communications
led to the charge of selling cannabis.
[8]
When the police spoke to Mr Wilson at the conclusion of the operation, he
admitted he had obtained cannabis from an associate on several occasions. This was
in ounce bags worth $280 to $300. He then sold most of the cannabis to friends and
associates for no financial gain, and he used some of the cannabis for his own
consumption. These admissions gave rise to the charge of conspiring to supply
cannabis.
[9]
When the police arrested Mr Wilson in March 2011, he was found to have
three LSD tablets in his wallet. This led to the charge of being in possession of LSD.
The structure of the sentence
[10]
The Judge took a starting point of two and a half years imprisonment on the
lead charge of supplying LSD. He then applied an uplift of eight months to reflect
the balance of the offending. This led to a total starting point of three years, two
months imprisonment. The Judge then applied a discount of eight months, or just
over 20 per cent, to reflect Mr Wilson’s guilty pleas and the conditions of bail to
which he had been subject since his arrest. He declined, however, to make any
further adjustment to the sentence to reflect Mr Wilson’s personal circumstances.
Although the Judge observed that Mr Wilson had taken some steps towards
rehabilitation, these were offset by the fact that a recent drug screening test had
returned a positive result for cannabis.3
3
At [11].
[11]
This process produced the end sentence of two years six months
imprisonment on the charge of supplying LSD. On each of the other charges, the
Judge imposed concurrent sentences of 12 months imprisonment.
Grounds of appeal
[12]
Mr Cook took no issue with the starting point the Judge selected, or with the
end sentence the Judge imposed at the time of sentencing. He advanced the appeal
solely on the basis of developments that have occurred since Mr Wilson was
sentenced. He urges the Court to recognise these by exercising its discretion to
reduce the sentence imposed by Mackenzie J. Mr Cook submits that this will
produce an end sentence of less than two years imprisonment, and that the Court
should then exercise its discretion to impose a sentence of home detention.
Events that have occurred since Mr Wilson was sentenced
[13]
After Mr Wilson was sentenced on 13 September 2012, he served
approximately four and a half months of his sentence before being released on bail
by order of this Court on 28 November 2012. He has been free on bail since that
time, albeit subject to a nightly curfew between the hours of 10 pm and 6 am.
[14]
The delay in having the present appeal determined has arisen as a result of
factors largely beyond the control of both parties, and is therefore a neutral factor for
present purposes.
[15]
Mr Wilson and his partner have both filed affidavits confirming that
Mr Wilson has adhered scrupulously to the terms of his bail, and that he has also
remained drug free since November 2012. To demonstrate this Mr Wilson has
produced a drug screening results form confirming that a sample of his urine taken
on 30 October 2014 contained no traces of any controlled drugs.
[16]
Mr Wilson was unemployed at the time he was sentenced. He has now
obtained permanent work at an engineering and welding firm in Nelson. A reference
from his employer states that Mr Wilson is able to organise, direct and lead a small
team of labourers. His level of skill has developed to the point where he has now
moved from being a labourer to being a tradesman assistant. His employer speaks
highly of Mr Wilson’s work ethics and habits.
[17]
Mr Wilson’s family circumstances have also changed. He and his partner are
now engaged, but their wedding plans have been suspended until the outcome of this
appeal is known. They have a son, who was born whilst Mr Wilson was in prison.
Mr Wilson says he is devoted to his son and wishes to do everything possible to
support him in the years to come.
[18]
Mr Wilson’s partner suffers from serious health issues. These resulted in her
being required to undergo an operation in August 2013 in which she had a kidney
removed. Mr Wilson’s partner also suffers from other health issues. These mean
that Mr Wilson is required to devote a significant portion of his time to looking after
his partner and his child.
The argument in support of the appeal
[19]
Mr Cook accepts that Mr Wilson would not have been a realistic candidate
for a sentence of home detention in September 2012 even if the Judge had imposed a
sentence of less than two years imprisonment. His criminal history contained several
convictions for breaching court orders, including breaching sentences of community
work and supervision.
The pre-sentence report recorded that his history of
compliance with such sentences was quite poor. In addition, Mr Wilson had a
significant problem with cannabis abuse at that time. His partner had also been a
significant user of cannabis. All of these factors led Mackenzie J to observe that a
sentence of home detention would not have been appropriate even if the end
sentence had been one of less than two years imprisonment.4
[20]
Mr Cook submits, however, that the changes in Mr Wilson’s personal
circumstances are so significant that the Court should take the rare step of applying a
further discount to reflect the positive developments that have occurred since he was
sentenced.
4
At [13]–[15].
[21]
Mr Cook submits that the Court should recognise these factors by reducing
the sentence to one of less than two years imprisonment. This would enable the
Court to impose a sentence of home detention. Although a sentence of around nine
months home detention would ordinarily have been appropriate, Mr Cook contends
that the sentence should be reduced by four and a half months to reflect the time
Mr Wilson spent in prison before being released on bail.
Decision
[22]
This Court’s jurisdiction in relation to the present appeal is prescribed by
s 385(3) of the Crimes Act 1961, which provides as follows:
(3)
On any appeal to which subsection (2A) applies [an appeal against
sentence], the Court of Appeal or the Supreme Court must –
(a)
dismiss the appeal; or
(b)
if it thinks that a different sentence should have been passed,
(c)
[23]
(i)
quash the sentence and replace it with another sentence
warranted in law (whether more or less severe) that the
court thinks ought to have been passed; or
(ii)
vary, within the limits warranted in law, the sentence or
any part of it or any condition imposed in it; or
remit the case to the court that imposed the sentence with a
direction that such court take an action of the kind described in
paragraph (b)(i) or (ii) in accordance with any directions given
by the Court of Appeal or the Supreme Court as the case may
be.
Generally speaking, the Court will determine an appeal against sentence
having regard to the circumstances that were in existence as at the date upon which
the sentence was imposed. This Court has held, however, that the wording used in
s 385(3)(b) is sufficiently wide to permit the Court to take into account significant
events that occur after that date.5
[24]
In R v Taiatini, for example, the appellant had been sentenced to three months
imprisonment, but was granted bail pending determination of the appeal.6 He had
responded positively during that period to a sentence of community care imposed in
5
6
R v Sanchez-Silverio CA196/05, 4 November 2005.
R v Taiatini CA148/85, 21 March 1986.
respect of unrelated offending. This Court recognised the positive change in the
appellant’s circumstances by quashing the sentence of imprisonment and ordering
the appellant to come up for sentence if called upon to do so within the next twelve
months.7
[25]
We are satisfied that the unusual circumstances of the present case justify the
Court reducing the sentence to recognise the positive developments in Mr Wilson’s
personal life during the lengthy period that has now passed since the date on which
he was sentenced. In doing so we are influenced in part by the following passage in
the Judge’s sentencing remarks:8
[12]
I have given careful and quite anxious consideration to the question
of the appropriate sentence for you. You have not previously been sentenced
to prison and I have given careful consideration to whether that is necessary
for this offending. There is a risk, I think, that prison will not be the best
option to promote your rehabilitation. Your counsel has made careful and
thoughtful submissions in which he has urged upon me that a sentence of
home detention would be appropriate. I have concluded that that is not an
appropriate sentence. I have reached the view that a sentence of
imprisonment is required for several reasons.
[26]
These observations suggest it is likely that, had Mr Wilson’s personal
circumstances been the same in September 2012 as they are today, Mackenzie J
would have reduced the sentence to one of less than two years imprisonment and
then imposed a sentence of home detention.
[27]
We consider that the end sentence of two years, six months imprisonment
should be reduced by six months to reflect the factors to which we have referred.
This produces a sentence of two years imprisonment, which enables the sentence of
home detention to be considered. For the same reasons we consider that a sentence
of home detention is now appropriate. That sentence would normally be one of
12 months home detention before making an allowance for the time that Mr Wilson
spent in prison before being released on bail.
[28]
We do not accept that the level of discount sought by Mr Cook should be
applied to reflect this factor. An end sentence of four and a half months home
7
8
At 6.
R v Wilson, above n 2.
detention would be insufficient, in our view, to adequately reflect the seriousness of
Mr Wilson’s offending.
Instead, we consider a discount of three months is
warranted.
Result
[29]
The appeal against sentence is allowed. The sentences of imprisonment are
quashed. In their place we impose sentences of nine months home detention on each
charge subject to the following conditions:
(a)
The sentences are to take effect as soon as the EM bail assessors are
able to install the necessary equipment in Mr Wilson’s home address
at 84B Russell Street, Nelson.
(b)
Until that time Mr Wilson is to remain on bail on existing terms.
(c)
Mr Wilson is to be present at his home address at a time and date
specified by his probation officer so that the electronic monitoring
equipment can be installed.
(d)
Once the sentences commence, Mr Wilson is to remain at his home
address and be subject to electronic monitoring at that address.
(e)
Mr Wilson is not to leave the address other than to attend
appointments that have been arranged in advance with his probation
officer.
(f)
Mr Wilson is not to be in possession of, or consume, alcohol or
non-prescription drugs for the duration of the sentence.
(g)
Mr Wilson is to comply with all directions given by his probation
officer (including any direction requiring him to undertake drug
screening tests).
(h)
Mr Wilson is to attend and complete any drug and alcohol treatment
programmes that his probation officer may direct.
Solicitors:
Crown Law Office, Wellington for Respondent