Walker-Paki v Police - [2024] NZHC 261

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-000021

[2024] NZHC 261

BETWEEN
TAMA WALKER-PAKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 February 2024 via VMR

Appearances:

S Yee for Appellant

A Bryant for Respondent

Judgment:

22 February 2024

JUDGMENT OF CULL J

[1] Mr Tama Walker-Paki appeals his sentence of 10 months’ imprisonment on convictions for charges of burglary,1 being found in an enclosed yard2 and theft.3 He now appeals this sentence on the basis that the appropriate end sentence was either community detention with intensive supervision or alternatively, home detention.

Factual background

[2] The three charges relate to three separate incidents. I detail them chronologically.

1      Crimes Act 1961, s 231(1)(a); maximum sentence ten years’ imprisonment.
2      Summary Offences Act 1981, s 29(1)(b); maximum sentence three months’ imprisonment.
3      Crimes Act 1961, ss 219 and 223(d); maximum sentence three months’ imprisonment.

WALKER-PAKI v POLICE [2024] NZHC 261 [22 February 2024]

Theft

[3] On 15 August 2023 at about 8.50 pm, Mr Walker-Paki was at the Warehouse, Napier. He made his way around the store selecting various items and concealed them in his bag with the intention of exiting the premises without paying for them. He paid for a couple of the items as he was leaving the store. He was challenged by a member of the staff. He refused to open his bag where the remaining items were concealed and left the store without paying. He had no permission to do so. Goods to the value of $153 were not recovered.

Being found in an enclosed yard

[4] On 21 August 2023 at about 5.50 am, Mr Walker-Paki and his associate jumped over the fence of an enclosed yard belonging to Corunna Auto Services Limited. The business was closed at the time and the co-defendants had no permission to be on the premises. Mr Walker-Paki attempted to cut a lock on the gate with bolt cutters from inside the property, with the gate being the main access point for that business. His associate was observed in front of the building in the property. Mr Walker-Paki was disturbed by a member of the public and ran towards the back of the property.

Burglary

[5] On 31 August 2023 at about 4.55 am, Mr Walker-Paki climbed under a barbed wire fence and entered an enclosed yard at the rear of Mitre 10, Napier. The business was closed at the time and he had no permission to enter. He uplifted various items from around the yard and concealed them on his person. He then made his way to the front of the premises and entered the enclosed garden centre, where he took further items. The police arrived and challenged him as he was leaving the premises. He ran from the police and hid on the roof of the building. He was arrested a short time later.

Procedural history

[6] In the District Court, the Judge adopted the burglary charge as the…

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.

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Details

Case: [2024] NZHC 261
Decision Date: 22 February 2024

CaseChat Overview and Summary

Mr Tama Walker-Paki appealed his sentence of 10 months’ imprisonment for burglary, being found in an enclosed yard, and theft, arguing that the appropriate sentence was community detention with intensive supervision or home detention. The case was heard in the High Court of New Zealand in Napier, with submissions from S Yee for the appellant and A Bryant for the respondent. The court found that the sentence imposed by the District Court was within the range available to the sentencing judge and was not manifestly excessive.

The legal issues the court had to decide were whether the sentencing judge erred in imposing a sentence of imprisonment and if the sentence was manifestly excessive. The court noted that the sentencing decision involved a discretionary exercise that engaged all of the principles and purposes in sections 7 and 8 of the Sentencing Act. The court of appeal had noted that there are obvious benefits to a sentence of home detention where an offender is motivated to change and there is a real prospect that they will be able to change. However, a history of non-compliance with community-based sentences may count against the imposition of home detention.

The court found that the District Court Judge did not err in imposing a sentence of imprisonment. The appellant's extensive history of non-compliance with community-based sentencing and bail is a relevant consideration that results in a sentence of imprisonment being open to the judge. The appellant's drug use is also a significant factor weighing in favour of a sentence of imprisonment. The home detention conditions proposed in the pre-sentence report provide little in the way of rehabilitation apart from the standard condition to attend a programme as directed. The court accepted the Crown's submissions that the failure of the Judge to explicitly mention sentencing principles does not undermine his decision. The sentence imposed was within the available range and the court did not consider that appellate interference was warranted.

The appeal was declined, and the sentence of 10 months’ imprisonment was upheld. The court also noted that the sentence could be considered lenient in some ways, as the Judge imposed no uplift for offending on bail despite that being available, did not impose reparations and remitted all of the appellant’s fines without an increase to the sentence, which is standard practice.

Orders