R v Walker-Haturini

[2021] NZHC 1208

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-029-1149

[2021] NZHC 1208

THE QUEEN

v

STACEY WALKER-HATURINI

Hearing:

27 May 2021

Appearances:

M Smith for the Crown

A M M Ives for Ms Walker-Haturini

Judgment:

27 May 2021

SENTENCING NOTES OF POWELL J

Solicitors:MWIS, Crown Solicitor, Whangarei Annabel Ives, Auckland

R v WALKER-HATURINI [2021] NZHC 1208 [27 May 2021]

[1]    Stacey Walker-Haturini, you appear for sentence today on seven charges. You were found guilty of five of those charges on 23 March 2021 following a jury trial in the Whangarei High Court, namely:

(a)Unlawfully possessing ammunition;1

(b)Unlawfully possessing a knife;2

(c)Possessing a cannabis plant;3

(d)Possessing cannabis seeds;4 and

(e)Possessing a methamphetamine utensil.5

[2]    Those charges arose from offending that happened in July 2018 (“July offending”). You were also charged with offending that occurred a month later in August 2018 (“August offending”).   You  pleaded guilty to those two charges on     8 March 2021, namely:

(a)Resisting arrest;6 and

(b)Possessing cannabis seeds.7

[3]    As you have heard counsel discuss, there was also one other charge arising out of the August offending, a charge of possession of methamphetamine. I now formally dismiss that charge this morning pursuant to s 147 of the Criminal Procedure Act 2011.

1      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding

$5,000.

2      Crimes Act 1961, s 202A(4)(a). Maximum penalty three years’ imprisonment.

3      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $500.

4      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $500.

5      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty one year’s imprisonment or a fine not exceeding $500.

6      Summary Offences Act 1981, s 23(a). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

7      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $500.

The offending

[4]    In relation to the July offending it is clear that the jury in your trial accepted that on the evening of 25 July 2018, you were the passenger in your Ford Falcon. It is alleged that your partner Heta Lloyd was the driver. As your car was driving north along State Highway 1 through Awanui, it passed a Police check point. The driver accelerated violently and pulled out on to the right-hand lane, overtaking the vehicle in front of him on a blind corner. Not surprisingly, the Police pursued the vehicle. The driver continued to drive dangerously, reaching speeds of up to 140 kilometres per hour as the pursuit continued into Aupouri Forest and on to Ninety Mile Beach, and shots were fired.

[5]    After the second shot the pursuing Police car abandoned the chase, and you and the driver were in turn able to abandon your vehicle on the beach and run into the forest.

[6]    As you are aware, the Armed Offenders Squad attended the scene where the vehicle had been abandoned. The Police dog handler commenced a track searching for you and the driver. In the course of that track they found a number of items, including a cell phone with an SD card containing several selfie-type photos of you, and a pair of women’s boots and a methamphetamine pipe, the latter giving rise to the charge of possession of a methamphetamine utensil. A later search of the car revealed a hunting knife, ammunition (shotgun and rifle ammunition) and cannabis which led to the possession of a weapon, explosives and cannabis charges respectively.

[7]    In finding you guilty, it is clear that the jury accepted that you had been the passenger in the car and that you were therefore in possession of each of those items found in the car.

[8]    The August offending obviously had its origin in the July offending. In the course of the trial, it was described how you were pulled in for questioning following the July offending, but as Mr Lloyd had not been found the Police continued searching.

[9]    On 18 August 2018, two off-duty Police officers at the beach in Shipwreck Bay observed you and Mr Lloyd in a car on the beach, with Mr Lloyd again in the driver’s seat.

[10]   The officers trailed the car and within a short space of time another significant and highly dangerous pursuit eventuated until Mr Lloyd was eventually stopped in a forest near Herekino and both of you were arrested.

[11]   After the car had been stopped and when officers approached the vehicle, you refused to get out and were verbally abusive and belligerent towards the Police. This led to your arrest and ultimately the charge of obstruction. A search of your handbag in turn located a ziplock bag containing over 100 cannabis seeds which led to the further possession charge.

Approach to sentencing

[12]   In sentencing you today I broadly follow a two-stage process.8 First, I must fix the starting point that the type of offending that you have committed would attract. This involves identifying the aggravating and mitigating features of the offending to enable me to arrive at an appropriate term of imprisonment. I must decide whether this starting point should be adjusted for totality considerations to ensure that the overall offending is proportionate to the type of imprisonment that could be imposed. I must then at the second stage take into account your personal circumstances that are relevant, including your guilty pleas for the August offending. I must also determine whether the starting point should be adjusted through any uplifts or discounts as a result of your personal circumstances.

[13]   While sentencing you, I must have regard to the purposes and principles of sentencing as set out in in ss 7 and 8 of the Sentencing Act 2002. This Court must impose a sentence that holds you accountable for what you have done, denounces your conduct, deters you and others from committing similar offences, and that also assists in your rehabilitation and reintegration into the community. I must further consider the gravity of your offending and your degree of culpability, the desirability of

8      Moses v R [2020] NZCA 296.

consistency with appropriate sentencing levels and, very importantly in this case, the need to impose the least restrictive sentence appropriate in the circumstances.

Starting point

[14]   I begin working out what the starting point for the July offending is. I take as the lead charge, the unlawful possession of ammunition. This charge has a maximum penalty of four years’ imprisonment. The Crown submits in their written submissions that a starting point of nine months’ imprisonment is appropriate on that charge. In contrast your counsel, Ms Ives, has submitted that a starting point in the region of eight months is appropriate for all of the July offending.

[15]   As counsel have noted, there is no guideline judgment, or indeed any particularly helpful judgments, for sentencing unlawful possession of ammunition. Looking at the particular circumstances of the July offending, I have had regard to the quantity and type of ammunition located in the vehicle. I have noted that there is, I think, only about five live shells (as you have heard me discuss with Mr Smith). I also note that, unlike many defendants charged with possessing ammunition, you have not been charged with possession of any firearm. Regardless, the Court of Appeal has stressed that firearms-related offending warrants a stern response because of the clear dangers posed to the community.9 Taking all of these matters into account, I consider a starting point of seven months’ imprisonment on the lead charge of possessing ammunition is appropriate.

[16]   Mr Smith, for the Crown, has submitted that this should be uplifted by one or two months’ imprisonment to take into account the rest of the July offending, namely the possession of the offensive weapon and the drug offending. However, taking into account the largely low-level nature of these other charges, I find that an uplift of one month is sufficient to reflect the balance of that offending. This brings the starting point to eight months’ imprisonment.

9      See R v Richardson CA450/02, 25 March 2003 at [33]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 388 at [40]; Torea v R [2011] NZCA 96 at [11]; R v McLean [2009] NZCA 465 at [24]; Haggie v R [2011] NZCA 221 at [23].

[17]   The Crown submissions also identified the fact that you were acting with a co- offender – the driver of the vehicle which was registered to you – as an aggravating factor increasing your culpability. However, I agree with Ms Ives that there are no particularly aggravating features beyond those inherent in the offending. In particular, there is no suggestion that you were in any way involved in the more serious aspects of the pursuit, being the dangerous driving and the firing of shots out of the vehicle.

[18]   Turning to the August offending, the Crown submits that I should uplift your sentence for the July offending by a further one or two months’ imprisonment to take into account the August offending. Although Ms Ives argues that this would be excessive, I agree that some increase to acknowledge the August charges is necessary, particularly as in that offending you were more responsible in the sense that it was you who obstructed Police and there were cannabis seeds in your purse. I accordingly impose a further uplift of one month.

Personal factors and guilty pleas

[19]   In terms of your personal aggravating factors, you have several relevant previous convictions. These convictions are for possession of cannabis plants, convictions for possessing methamphetamine utensils and convictions for resisting Police, including one conviction for assaulting Police. Another aggravating feature is that you committed the present offending while you were on bail for other offending.10 It is clear in this Court that offending on bail tends to justify an uplift because it suggests disrespect for Court processes and orders.11 The Crown seeks an uplift of one to two months to recognise these various factors. I consider a further one-month uplift to be appropriate taking into account your guilty plea for the August offending, which would bring your notional sentence to one of approximately 10 months’ imprisonment.

Form of sentence

[20]   Although 10 months’ imprisonment is the figure that we have got to, as you have heard, there is actually agreement among counsel that that is not where it should

10      Sentencing Act 2002, s 9(1)(c).

11     Clunie v R [2013] NZCA 110.

stay. I note particularly Mr Smith’s acknowledgment that ultimately, one way or the other, this is a time-served situation. Having gone through that exercise to tell you what the appropriate period of imprisonment would be, we ultimately get to a point where imprisonment is not appropriate.

[21]   As Mr Smith has said, however, it is not a particularly straight-forward exercise for me to work through these matters. Having considered the various submissions, I agree with Ms Ives’s approach. While I acknowledge the comments in the PAC report which indicated that there had been difficulty serving your most recent term of community detention, I note those comments overlook the significant restrictions on your liberty that have already been imposed in connection with this offending.

[22]   Leaving aside for present purposes the two months that you were remanded in custody prior to being granted EM bail,12 which in a short sentence of imprisonment effectively amounts to four months’ imprisonment, you have also served the equivalent of:

(a)six months home detention, being the six months on EM bail with a 24- hour curfew;13 and

(b)seven months’ community detention, being the seven months’ EM bail with a 12 – 14 hour daily curfew.14

[23]   In such circumstances, it can be seen that any sentence of imprisonment in this case would be manifestly excessive.

[24]   While I am conscious that New Zealand courts have not typically seen restrictive EM bail as valuable if it occurs before sentence as afterwards, I cannot see the basis for any such distinction where it involves the same restrictions on the liberty of the defendant. In the absence of any principled basis for concluding that the same

12 59 days to be exact.

13 Equivalent in appropriate circumstances to 12 months’ imprisonment.

14  Equivalent in appropriate circumstances to 14 months’ imprisonment, albeit community detention is limited to a maximum of six months and the total weekly curfew imposed (98 hours) exceeded the maximum permissible for community detention (which is 84 hours: Sentencing Act 2002, s 69B(4)).

type of detention magically becomes four times more valuable if it occurs after conviction than while awaiting trial, it should be appropriately credited in terms of the nature of the detention that has been imposed. It is important as the courts embrace Te Ao Mārama that we are fully transparent, consistent and fair in the application of credits for this type of detention.15 In my view, this means crediting pre-conviction detention for restrictive or EM bail in the same way as an electronically monitored community-based sentence unless good reasons exist for not doing so. This is particularly important in circumstances where defendants have spent more time on restrictive and EM bail awaiting trial as a result of delays caused by the Covid-19 pandemic.

[25]   The bottom line in this case is I am not sentencing you to a term of imprisonment.

[26]   This takes me to what is appropriate for your sentence. I have thought seriously about Ms Ives’s initial submission proposing that you be sentenced if called upon.16

[27]   I note you are the primary caregiver for your three children, the two youngest being four and six years old. You are also actively involved in looking after your stepdaughter with her major health problems and who I understand is now awaiting a heart transplant. I was impressed by the letters that you have received in support from your employer, the local RSA, and it is a real credit to you that you have become such a reliable employee at that place. It seems to me that you have a real chance at turning your life around and I think it is to your great credit that we are talking like this at this time.

[28]   I do not think it is appropriate just to have you sentenced if called upon. This is because, as Ms Ives has pointed out in her oral submissions and the calculation that

15 Time spent on EM bail is a mandatory consideration under the Sentencing Act 2002; it is not uncommon for Courts to give an allowance of up to 50% of the time on bail: Hall v R [2020] NZCA 183 at [37]. In Parata v R [2017] NZCA 48, the Court rejected that a one-for-one credit could be given for time on EM bail (as for home detention), though noted at [14] that there was “considerable similarity between the conditions of home detention and those experienced when subject to the most restrictive form of EM bail”. The primary rationale for that statement appeared to be a concern where the bail restrictions were not otherwise equivalent to detention. In light of those similarities, and as I have expressed, I see no principled reason for treating time on restrictive EM bail differently to detention where the conditions are otherwise identical.

16 Sentencing Act 2002, s 110.

I have just taken you through, it is clear that you have already served any punitive element of any sentence that I could possibly impose.

[29]   Secondly, I am conscious that while you have made tremendous strides, there are still some drug and other dependency issues that you need help with. I agree with Ms Ives that a sentence of supervision that actually just helps you to maintain that structure for a bit longer, gives you access to counselling for alcohol and drugs and enables you to attend other courses, may be helpful as you continue your progress. I therefore conclude that it would sensible to continue that supervision for a further six months.

[30]   Finally, although there was a proposal for a non-association condition with Mr Lloyd in Crown submissions, I agree with counsel in the discussion that we have had at the hearing that that is not appropriate.

Sentence

[31]Ms Walker-Haturini, would you please stand.

[32]   On the charges of unlawful possession of ammunition, unlawful possession of a knife, possession of a cannabis plant, possession of cannabis seeds, possession of a methamphetamine utensil, and resisting arrest, I sentence you to six months’ supervision to enable you to attend courses and counselling as appropriate.

[33]Thank you. You may stand down.

Powell J