R v Walters

[2013] NZHC 1471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-882 [2013] NZHC 1471

THE QUEEN

v

MATHEW WALTERS

Hearing:	18 June 2013
Appearances:	W Fotherby for Crown V Heather for Respondent
Judgment:	18 June 2013

(ORAL) JUDGMENT OF LANG J [on application for review of sentence]

R v MATHEW WALTERS [2013] NZHC 1471 [18 June 2013]

[1]      Mr  Walters  pleaded  guilty  in  the  District  Court  to  charges  of  being  in possession of cannabis for supply and failing to appear at a hearing of the District Court.    The  District  Court  declined  jurisdiction  to  sentence  Mr  Walters  and committed him to this Court for sentence.

[2]      On 17 July 2012, Hansen J sentenced Mr Walters to 18 months intensive supervision and 200 hours of community work on the charge of being in possession of cannabis for supply.  He discharged Mr Walters without penalty in respect of the charge of failing to appear.1

[3]      The Department of Corrections has now applied for an order under s 54K of the Sentencing Act 2002 cancelling the sentence of intensive supervision and substituting in its place an alternative sentence.   It does so on the basis that it contends that Mr Walters has failed to comply with the sentence of intensive supervision the Judge imposed.

[4]      Given the issues the present application raises, it is necessary to go back and traverse the issues that were the subject of comment by the Judge in his sentencing remarks.

Background

[5]      The cannabis charge was laid after the police were called to Mr Walters’ address on 1 December 2011 to investigate a burglary.  There, they found an area of the garage had been set up to cultivate and harvest cannabis.  The area was lined with polythene, the window was blacked out and an extractor fan and two large heat pumps had been installed.  Other apparatus and materials relating to the cultivation of cannabis were also found in the vicinity.

[6]      The police found a large amount of cannabis plant drying in the area.  Dry cannabis leaf was also found in bags.  The Judge proceeded for sentencing purposes on the basis that there were seven or eight ounces of cannabis, or 210 to 240 grams,

that  would  have  been  available  for  sale.     This  would  realise  the  sum  of approximately $2,000.

[7]      The Judge considered that an appropriate starting point was at the bottom of category 2 identified in R v Terewi.2    He therefore adopted a starting point of two years three months imprisonment.  The Judge did not accept the Crown’s submission that there should be an uplift for previous offending, which he considered to be historical only. He then applied a discount of 25 per cent to reflect early guilty pleas. This led to an end sentence of one year eight months imprisonment.

[8]      The  Judge  then  turned  to  consider  whether  an  alternative  sentence  was available. He indicated that he had initially been of the view that a sentence of home detention could have been imposed.  He said, however, that he was persuaded by the submissions of both counsel that sentences of intensive supervision and community work were appropriate.   The Judge took that approach because both counsel considered Mr Walters was a suitable candidate for rehabilitation, and appeared to be motivated towards that end.

[9]      The Judge also noted that it  was  important that Mr Walters address his addiction or substance abuse issues, and that he needed to have available to him drug and alcohol counselling.  The Judge viewed that as a compelling consideration that convinced him that the combination of intensive supervision with special conditions and community work was an appropriate response to Mr Walter’s offending.

Subsequent events

[10]     Unfortunately, the Judge’s optimism appears to have been misplaced.  Within six days of being sentenced, Mr Walters committed a burglary.  On 3 October 2012, he was sentenced to three months community detention on that charge.  By October

2012, Mr Walters was also in breach of the sentence of community work Hansen J had imposed.  He was then involved in an incident on 15 November 2012 in which he assaulted his partner.  This resulted in him receiving a sentence of three months imprisonment.

[11]     On 6 March 2013, Mr Walters failed to answer his bail at the District Court, and on 20 November 2012 he breached the conditions of the sentence of community detention imposed when he was sentenced on the burglary charge.

[12]     Mr  Walters’ response  to  the  sentence  of  intensive  supervision  has  been

similarly disappointing.  He failed to report on three occasions between 2 October

2012 and 28 November 2012.  On 14 November 2012, Mr Walters was issued with written instructions to report to a probation officer on 21 and 28 November 2012 and

5 December 2012.   He failed to report on those dates and provided no reasonable excuse for his absence.  This resulted in the Department of Corrections laying three charges  alleging  that  Mr  Walters  had  breached  the  conditions  of  intensive supervision.  Counsel advises me today that Mr Walters has pleaded guilty to those charges, and now awaits sentence on them in the District Court.

Decision

[13]    The woeful failure of Mr Walters to respond to the sentence of intensive supervision means that there is no realistic alternative but to re-sentence him on the cannabis charge.  It is clear that Mr Walters does not wish to take advantage of the opportunity that Hansen J offered him to rehabilitate himself.  That being the case, another form of sentence must be imposed.

[14]     Had Mr Walters been compliant with other forms of non-custodial sanctions, I would have considered a sentence of home detention.  Two difficulties arise in that regard.  The first is that he wishes to reside at the address where the assault on his partner took place.  That would obviously be unacceptable.  Through his counsel he has proposed an alternative address, but no investigations have been made of that address to date.   In any event, the manner in which Mr Walters has responded to sentences of community work and community detention make it clear that there is little chance of him responding in a positive way to the strictures imposed by a sentence of home detention.  For that reason the only realistic sentence available is a sentence of imprisonment.

Sentence

[15]     The starting point for present purposes is obviously the end sentence of one year eight months imprisonment selected by Hansen J.  From that, I need to make a deduction to reflect the fact that Mr Walters has performed 95 hours of the sentence of 200 hours community work the Judge imposed.  He appears to have engaged to only a minimal extent in relation to the sentence of intensive supervision.

[16]   It is impossible to assess the appropriate deduction on any precise or mathematical formula.  The Crown suggests that a reduction of three to four months would be appropriate. Counsel for Mr Walters contends that an allowance of eight to nine months should be made.  I consider the answer lies somewhere in the middle.  I propose to reduce the sentence by six months to reflect the fact that Mr Walters has partially performed the sentence of community work that the Judge imposed upon him.

Sentence

[17]     The application for cancellation of the sentences of intensive supervision and community work  is  granted.    Those  sentences  are  cancelled.    In  their  place  I substitute a sentence of one year two months imprisonment.

[18]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

V Heather, Public Defence Service, Auckland