Walker v Police - [2016] NZHC 597

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-443-005 [2016] NZHC 597

BETWEEN
BLAIR DEAN WALKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 April 2016

Counsel

J M Woodcock for appellant
S J Simpkin for respondent

Judgment:

7 April 2016

RESERVED JUDGMENT OF DOBSON J

[1] On 6 January 2016, Mr Walker was sentenced by Judge Roberts in the District Court in New Plymouth to a term of two years’ imprisonment on one conviction for injuring with intent to injure.1 Mr Walker has appealed that sentence on the grounds that it is manifestly excessive and that home detention should have been imposed instead.

The facts

[2] The victim of the assault was a 26 year old male who, at the time of the offending, was residing with Mr Walker’s ex-partner as a flatmate. Two children of whom Mr Walker is the father were living with his ex-partner, so they were in the same domestic environment as the victim, who at times cared for those children.

[3] There was a background of animosity between Mr Walker and the victim, which had extended to an argument outside Mr Walker’s home and an abusive phone
call made by the victim to Mr Walker. Mr Walker believed, apparently with some

1 Police v Walker [2016] NZDC 26.

justification, that the victim had stolen money from Mr Walker’s ex-partner. Mr Walker made arrangements for his ex-partner to notify him when the victim would be home. At about 9 pm on 1 November 2015, Mr Walker went to the victim’s address in response to such an indication with a number of associates. The associates disguised their identities by covering their faces with balaclavas or bandannas and Mr Walker has subsequently refused to identify them.

[4] Mr Walker and his associates assaulted the victim, punching and kicking him, including when he was lying on the ground. The victim claimed to have suffered cracked ribs and photographs verify a black eye, lacerations to his eyebrow and numerous bruises and scratches. The attack on the victim ended when Mr Walker’s ex-partner called the Police. After the event, Mr Walker pressured her to destroy evidence that might link him to the assault. Mr Walker initially denied having been at his ex-partner’s address on the night in question, but then entered a prompt plea of guilty.

Approach on sentencing

[5] The Judge considered the potential aggravating features from the list in the Court of Appeal’s guideline judgment in R v Taueki.2 The Judge identified five, namely:

· an element of pre-meditation;

· the assault involved multiple attackers;

· the assault involved an attack on the head resulting in a number of injuries;

· the attack was a form of vigilante action; and

· the attack constituted a home invasion.

2 R v Taueki [2005] 3 NZLR 372 (CA).

[6] The Judge rejected a Police submission that the assault involved extreme violence.

[7] The Judge then placed the offending in band three from Nuku v R, 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.

Continue reading Walker v Police

Details

AGLC: Walker v Police [2016] NZHC 597
Case: [2016] NZHC 597
Decision Date: 7 April 2016

CaseChat Overview and Summary

The appellant, Blair Dean Walker, sought to appeal a sentence of two years' imprisonment imposed on him for injuring with intent to injure. The sentence was imposed by Judge Roberts in the District Court in New Plymouth. The appeal was based on the ground that the sentence was manifestly excessive and that home detention should have been imposed instead. The respondent, New Zealand Police, opposed the appeal. The central legal issues were whether the District Court Judge erred in the assessment of the aggravating features and whether the Judge erred in declining to impose a sentence of home detention.

The High Court found that the Judge’s consideration of the aggravating features was not erroneous. The Judge correctly placed the offending in band three of Nuku v R, which led to the appropriate starting point for the sentence. The High Court also found that the Judge erred in declining to impose a sentence of home detention. The Judge’s reasoning was inconsistent with the statutory requirement to impose the least restrictive outcome and to take into account the particular circumstances of the offender. The High Court substituted the sentence with a term of nine months’ home detention with certain conditions, and 150 hours of community work.

The court ordered that Mr Walker was to be released as soon as arrangements for monitoring a sentence of home detention at the nominated address can be made. Once such arrangements are in place, he is to be released to travel directly to that address to await the arrival of a field officer. The special conditions applying are that Mr Walker is to reside at the approved address and not to move to any new residential address without the prior written approval of a Probation Officer; to attend an assessment for a substance abuse programme and to attend and complete any counselling, treatment or programme as recommended by the assessment; to attend an assessment for a Departmental programme and to attend and complete any counselling, treatment or programme as recommended by the assessment; to attend and complete an appropriate anger management programme to the satisfaction of a Probation Officer; and not to associate with or contact his ex-partner without the prior written approval of a Probation Officer.

Orders