Walker-Paki v Police
[2024] NZHC 261
•22 February 2024
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 lead offence and assigned a starting point of ten months’ imprisonment. The Judge noted that Mr Walker-Paki was assessed as posing a medium likelihood of future offending and a low-to-medium risk of harm to others and observed that the related factors to his
offending were Mr Walker-Paki’s use of methamphetamine and cannabis, his attitudes and his lifestyle.
[7] The Judge imposed a two month uplift for the concurrent offending. The Judge imposed a further one month uplift for previous offending history, which consisted of four previous convictions for dishonesty offences, taking the sentence to 13 months. The Judge then granted a 20% discount for guilty plea, followed by a 5% discount for remorse (which the Judge noted was relatively limited), reducing the sentence to ten months’ imprisonment.
[8] In considering the sentence to be imposed, the Judge noted that Mr Walker- Paki does not appear to comply with community-based sentencing, including a breach of electronically monitored bail in October 2023, five convictions for breaching community work sentences, a conviction for breaching supervision, six convictions for failing to answer District Court bail, two convictions for failing to answer police bail, fourteen offences committed while subject to bail conditions and unsatisfactory compliance with his most-recent sentences of supervision and community work. The Judge again addressed to Mr Walker-Paki’s drug problem. The Judge concluded that Mr Walker-Paki would not comply with a community-based sentence, and imposed a sentence of ten months’ imprisonment. The Judge further imposed release conditions for six months following imprisonment and remitted $2,928 worth of fines.
Parties’ positions on appeal
For the appellant
[9] Mr Yee, for the appellant, takes no issue with the starting points, uplifts and discounts, but says that the Court erred in imposing a sentence of imprisonment. Mr Yee submits that the Court should have imposed an EM sentence, or, in the alternative, a sentence of home detention.
[10] Mr Yee notes that several key principles were not expressly considered, including the desirability of keeping offenders in the community as far as is
practicable4 and the need to impose the least restrictive sentence.5 These principles, he says, are more onerous in their application than the general consideration of rehabilitation present in the District Court judgment. Similarly, Mr Yee notes that the Court did not explicitly consider the hierarchy of sentencing,6 and submits that, as Mr Walker-Paki had received sentences of supervision, community work and reparation for prior dishonesty offending, the next logical step would be for an EM sentence to be imposed.
For the respondent
[11] The Crown says that the District Court Judge did not err when concluding that Mr Walker-Paki is unsuitable for a sentence less than imprisonment. Mr Walker-Paki’s history of non-compliance with Court-imposed conditions (as set out above) is sufficient evidence of this. The Crown notes that a key offending related factor is Mr Walker-Paki’s drug use, which he has taken no steps to address.
[12] Lastly, the Crown submits 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 Mr Walker-Paki’s fines without an increase to the sentence, which is standard practice.
Legal principles on appeal
[13] In order to succeed, Mr Walker-Paki must show that there was an error in the sentence reached and that a different sentence should have been imposed.7 The Court will not intervene where the sentence is within the range available to the sentencing Judge.8 The Court will intervene only if the sentence is manifestly excessive.9
[14] Section 8(g) of the Sentencing Act states that the Court must impose the least restrictive outcome appropriate in the circumstances. In Doolan v R, the Court of Appeal held the following:
4 Sentencing Act 2002, s 16.
5 Sentencing Act, s 8(g).
6 Sentencing Act, s 10A.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279 at [36].
9 Kumar v R [2015] NZCA 460 at [81].
In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender.
[15] The Court of Appeal has 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.10 Further, the High Court held that a history of non- compliance with community-based sentences may count against the imposition of home detention.11
Analysis
[16] The sole question on appeal is whether the Judge erred in imposing a sentence of imprisonment.
[17] Mr Yee points to the efficacy of home detention relative to imprisonment in promoting rehabilitation, accountability and deterrence in prolific dishonesty offenders.12 Mr Yee also relies on two authorities: Ware v Police and Longman v Police.13 In both cases, the defendants committed more serious burglary offences and had extensive criminal histories but were sentenced to home detention. However, neither defendant had displayed such an extensive history of non-compliance with court orders as Mr Walker-Paki.
[18] While a different judge may have imposed a sentence of less than imprisonment, the sentence imposed was not manifestly excessive. Mr Walker-Paki’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. I note that the probation officer in the PAC report assessed Mr Walker-Paki’s ability to comply with community-based sentences as low. Although home detention is not a community-based sentence, the same assessment applies.
10 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
11 McCausland v Police HC Christchurch CRI-2008-409-68, 19 June 2008 at [11].
12 R v Hill, above n 10, at [33]; Tuki v Police [2020] NZHC 806 at [3], [23]–[24] and [30]; R v Ransom [2010] NZCA 390 at [42].
13 Ware v Police [2021] NZHC 3320; Longman v Police [2017] NZHC 2928.
[19] Mr Walker-Paki’s drug use is 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. It cannot be overlooked that Mr Walker- Paki was directed to complete rehabilitation in the past and was expelled from the programme for non-compliance. As the Judge noted, Mr Walker-Paki has otherwise taken negligible steps to address his drug use.
[20] Mr Yee points to Mr Walker-Paki completing 62 days of EM bail pending sentencing for the current convictions and his six months served on home detention in 2014. I note however, there was a certified breach of his EM bail as recent as 11 October 2023. This reinforces the concern about his non-compliance with community- based sentences.
[21] I accept 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 I do not consider that appellate interference is warranted.
Conclusion
[22]The appeal is declined.
Cull J
Solicitors:
Heretaunga Chambers, Napier, for Appellant Crown Solicitor, Napier, for Respondent
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