Walker v New Zealand Customs - [2021] NZHC 3380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-157

[2021] NZHC 3380

BETWEEN
ANDREW WALKER

Appellant

AND

NEW ZEALAND CUSTOMS

Respondent

Hearing: 29 November 2021

Appearances:

M J Dyhrberg QC for Appellant J-H Kang for Respondent

Judgment:

10 December 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 December 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

WALKER v NEW ZEALAND CUSTOMS [2021] NZHC 3380 [10 December 2021]

[1] Andrew Walker (the appellant) appeals the decision of Judge A-M J Bouchier of 10 March 20211 sitting in the District Court at Auckland convicting him of a charge of threatening a customs officer acting in the execution of his duties arising from events that occurred on 11 December 2019 during a meeting at Customhouse. 2 The appellant also appeals against Judge Bouchier’s decision of the same date declining his application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.3

Background

[2] On the morning of 11 December 2019 the appellant who is a Director of Crawford and Walker, went to the Auckland Customhouse to discuss Customs suspension and deactivation of his company’s brokerage account and code for non- payment of $115,000 in customs duties. The appellant initially spoke with a Customs receptionist and three Customs Officers before asking to speak to someone more senior.

[3] At around 9:30 am, Supervising Customs Officer Sun Jun (Officer Sun) and Customs Officer Earley (Officer Earley) met with the appellant in a meeting room at the side of the reception area. During the course of the meeting Officer Sun advised the appellant that the reason Customs would not reinstate the broker code was because the appellant had failed to answer questions put to him regarding unpaid customs duty. The appellant said that the suspension of his broker code was unfair, that it was ruining his business, and he started raising his voice and becoming increasingly agitated. Officer Sun then told the appellant that he was terminating the meeting, and he stood up and opened the door to enable the appellant and Officer Earley to leave the meeting room. The appellant, who had been seated, also stood up and went towards Officer Sun who was standing beside the doorway. As the appellant moved closer to Officer Sun he raised a clenched fist at him and said: “I’m going to smash you.” The appellant then followed the two Customs officers to the reception area of the building before leaving the building. Later that day he sent an email to Officer Sun which he also

1      New Zealand Customs Service v Walker [2021] NZDC 13662.
2      Customs and Excise Tax Act 2018, s 376(1)(a) and (3). Maximum period of imprisonment: 12 months’ or a fine not exceeding $15,000.
3      New Zealand Customs Service v Walker [2021] NZDC 13718.

copied to Customs Officer Earley and another Customs Officer…

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: [2021] NZHC 3380
Decision Date: 10 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Andrew Walker, appeals against his conviction and sentence by Judge Bouchier in the District Court. Walker was convicted of threatening a customs officer in the execution of his duties and declined an application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. Walker's appeal against conviction is dismissed, however, the appeal against the refusal to grant a discharge without conviction is successful. The Court found that the consequences of conviction would be out of all proportion to the gravity of the offending. The Court orders that Walker be discharged without conviction and pay costs to the Crown in the sum of $500.00.

The appellant, Andrew Walker, appealed his conviction and sentence by Judge Bouchier in the District Court. The appellant was convicted of threatening a customs officer in the execution of his duties and declined an application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The appellant's grounds of appeal were that the Judge erred in finding that the mens rea element of the offence had been satisfied, the Judge erred in failing to give reasons for finding that the threat was intended to be taken seriously, and the real and appreciable consequences of a conviction are wholly out of proportion to the gravity of the offence and consequently the appellant should be discharged pursuant to s 106. The appeal against conviction was dismissed. The appeal against the decision to decline a discharge without conviction was successful. The Court found that the consequences of conviction would be out of all proportion to the gravity of the offending. The Court ordered that the appellant be discharged without conviction and pay costs to the Crown in the sum of $500.00.

Orders