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R v Walker

R v Walker

Case [2009] NZCA 56 6 March 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA435/2008
[2009] NZCA 56
THE QUEEN
v
JESSE LAWRENCE WALKER
Hearing:24 February 2009

Court:Chambers, Gendall and Allan JJ
Counsel:G Boot for Appellant

A R Burns for Crown

Judgment:6 March 2009 at 11 am

JUDGMENT OF THE COURT

Appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
[1]       This is an appeal against an effective term of five years’ imprisonment imposed upon the appellant in the District Court at Tauranga, following upon his guilty pleas to counts of burglary, unlawful conversion of a motor vehicle and three counts of aggravated robbery. Judge Ingram sentenced the appellant to concurrent terms of five years’ imprisonment on the aggravated robbery charges and to two years’ imprisonment on each of the charges of burglary and unlawful conversion of a motor vehicle.
[2]       It is contended on his behalf that the sentence imposed of five years’ imprisonment was manifestly excessive because the Judge adopted too high a starting point of seven years and failed to make proper allowance for mitigating features.
Background
[3]       On 1 January 2008 the appellant, in the company of a co-offender, Lance Bush, broke into a residential dwelling in Hamilton when the owners were overseas. The extent of the property taken from the dwelling is not clear, but the owner’s motor vehicle was converted by the appellant and his co-offender to their use. It was driven to the Mount Maunganui area. Later that day, at about 11.00pm, the car was being driven by Mr Bush and the appellant was a passenger in it. It stopped so that the appellant could accost a woman in the street. He was armed with a knife, demanded money, and took her handbag from her shoulder. He returned to the vehicle, which was driven away. He then accosted two different female complainants in the streets of Mount Maunganui, about 15 minutes later. Again the vehicle drew up beside the victims and the appellant confronted the women armed with the knife, and demanded their handbags. He obtained these despite some brief resistance from one complainant.
[4]       So in the space of 24 hours the appellant and his co-offender committed one burglary, car conversion and three aggravated robberies in the streets of Mount Maunganui at a holiday time. They were apprehended by the police later that day after a pursuit through a congested area, when the vehicle was driven at speed and incriminating materials thrown from it.
[5]       The appellant initially denied any offending. He pleaded not guilty but eventually changed his plea to one of guilty on 16 May 2008 after he had been committed for trial at a preliminary hearing and after his co-offender had pleaded guilty.
[6]       The appellant was then aged 18 and had over 70 previous convictions. The Judge recognised as a mitigating factor the fact that the appellant had participated in a restorative justice conference and had a personality disorder, which made his life more difficult than otherwise may have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walker

Details

AGLC: R v Walker [2009] NZCA 56
Case: [2009] NZCA 56
Decision Date: 6 March 2009

CaseChat Overview and Summary

Jesse Lawrence Walker appealed against the sentence of five years' imprisonment imposed upon him by the District Court at Tauranga. Walker had pleaded guilty to counts of burglary, unlawful conversion of a motor vehicle, and three counts of aggravated robbery. The Court of Appeal was required to determine whether the sentence imposed by the District Court was manifestly excessive.

The appeal focused on the starting point and the uplift for the burglary, car conversion, and the appellant's criminal record. The appellant's counsel argued that the starting point was too high and the uplift was excessive. The Court of Appeal disagreed, finding that the starting point was appropriate given the nature of the aggravated robberies, which involved multiple victims and the use of a weapon. The Court also found that the uplift was justified due to the vulnerability of the victims and the appellant's extensive criminal history.

The Court of Appeal found that the appellant's counsel did not dispute the necessity of an uplift but argued that the discount for mitigating factors was inadequate. The Court of Appeal disagreed, finding that the discount for mitigating factors was appropriate and that the discount for the guilty pleas was in line with recent decisions, which indicate that a 25% discount is appropriate where a guilty plea is entered at the time of committal for trial.

The Court of Appeal concluded that the sentence of five years' imprisonment was reached in a careful and measured way by the Judge, who did not err in any respect. The Court found that the sentence was not manifestly excessive and dismissed the appeal.

Orders