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 Court of Appeal decision providing ranges of penalties for such offending.3    Band three provides for starting points of two years up to the maximum penalty of five years’ imprisonment.   That led to the Judge adopting a starting point of three years’ imprisonment.

[8]      The Judge acknowledged that the victim had contributed to the context in which the attack on him occurred:4

He was pushing his luck and as I have noted prior to the incident he had engaged in unwise behaviour himself threatening you.

The Judge allowed  a concession  of three months  because of this  aspect  of the circumstances, reducing the sentence to two years and nine months.

[9]      Thereafter,   the   Judge   acknowledged   a   full   25 per cent   discount   for

Mr Walker’s early guilty plea, reaching a final sentence of two years’ imprisonment.

[10]     The Judge then considered whether to transform a prison sentence of that length into one of home detention.  He declined to do so because of the seriousness he attributed to the offending, with denunciation and deterrence being insufficiently emphasised if the sentence was less than a term of imprisonment.  He cited lack of remorse as one reason for declining home detention, but at the same time observed that Mr Walker was not to be penalised for lack of remorse.  He also cited the fact that community detention penalties had done nothing in the past to deter Mr Walker, that he did not acknowledge any rehabilitative needs, and that the offending had occurred whilst he was on bail.

[11]     Accordingly, the end sentence was two years’ imprisonment.

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

4      Police v Walker, above n 1, at [22].

Arguments on appeal

[12]     The  appeal  against  sentence  is  governed  by  s 250(2)  of  the  Criminal Procedure Act 2011, which requires the appellate court to allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

Length of prison sentence

[13]     Ms Woodcock’s initial criticism was that the Judge had too readily attributed materiality to aggravating features, without evaluating their real significance in all the circumstances of this case.  Further, that he was unduly influenced by the mere number  of  such  factors  identified,  when  Taueki  requires  a  more  evaluative assessment.  In short, placing this case in band three from Nuku merely because five of the aggravating features listed in Taueki were present resulted in a higher starting point than was appropriate.

[14]     Inevitably, some of the aggravating features were present here to a more meaningful extent than others.   However, I am not persuaded that the Judge’s consideration of them was inadequate.  In addition to rejecting the Police claim that extreme violence had been involved, the Judge evaluated the relative seriousness of the attack being to the victim’s head.  The Judge was correct in placing the offending in band three from Nuku.

[15]     Ms Woodcock invited comparison with a number of other sentencings for injuring with intent to injure, which she suggested demonstrated that the starting point  adopted  here  was  too  high.5      A detailed  comparison  with  the  facts  and sentences in those cases is unnecessary.   Each case has its own weighting of individual circumstances that make precise comparisons difficult.  For example, as Ms Simpkin submitted, a number of those where lower starting points were adopted

involved offenders who were not the lead participants in attacks on the victims.  In contrast,  here  it  is  appropriate  to  treat  Mr Walker  as  very  much  the  primary

protagonist, taking the others along on the enterprise to “add muscle”.

5      Pokaia v Police [2015] NZHC 1718; O’Docherty v Police [2014] NZHC 2312; Perkins v Police [2014] NZHC 1544; Chambers v R [2015] NZHC 1590; R v Hona [2014] NZHC 12; Bennett v R [2012] NZCA 173.

[16]     No criticism was advanced of the three month deduction allowed for the victim’s contribution to the context in which the attack on him occurred, and that was clearly appropriate.   Ms Woodcock acknowledged that Mr Walker may have been vulnerable to an uplift as the offending occurred whilst he was on bail, but submitted  that  any such  consideration  was  offset  by the  credit  that  could  have applied for Mr Walker having been remanded on restrictive bail conditions.

[17]     I am not persuaded that there was any error in the length of the final sentence

of two years’ imprisonment.

Home detention

[18]     The major challenge on appeal was to the Judge’s refusal to commute the sentence to one of home detention.  This component of the sentencing analysis was a matter for the Judge’s discretion so the onus on Mr Walker is to establish that the Judge acted on a wrong principle, failed to take into account some relevant factor or took account of an irrelevant factor, or was plainly wrong.6

[19]     Ms Woodcock criticised the Judge for citing lack of remorse as one of his reasons for declining home detention, notwithstanding the Judge’s acknowledgement that Mr Walker should not be penalised for that.  I accept that the Judge’s view on lack of remorse appears to be inconsistent in this context.

[20]     Ms Woodcock also criticised a further reason cited by the Judge that previous sentences  involving  community detention  had  done nothing to  deter  Mr Walker. This  was  his  first  conviction  for  violence  and  Mr Walker  had  complied  with community based sentences imposed in the past.   Mr Walker has previously not served a sentence of home detention and the positive pre-sentence report available on sentencing recommended home detention and community work.

[21]     A further reason cited by the Judge against commuting the sentence to one of home detention was that Mr Walker had not acknowledged any rehabilitative needs.

Although the prospect of employment is only rehabilitative in a wider sense, that

6      May v May (1982) 1 NZFLR 165 (CA) at 170.

prospect does arise for Mr Walker and it is a factor favouring home detention on the assumption that Mr Walker may be able to secure employment on terms that those supervising a sentence of home detention would permit him to undertake.

[22]     The Judge’s analysis on the prospects of home detention was, with respect, inconsistent with the approach required under ss 7 and 8 of the Sentencing Act 2002, and in particular did not meaningfully address the obligation to impose the least restrictive  outcome  and  to  take  into  account  the  particular  circumstances  of Mr Walker as the offender.

[23]     I accordingly allow this aspect of the appeal.  On the basis that Mr Walker will now have served three months of the prison sentence, I substitute that with a term of nine months’ home detention.  Conditions for that sentence are adopted from the recommendation in the pre-sentence report.   Accordingly, Mr Walker is 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:

(a)      to  reside  at  the  approved  address  and  not  to  move  to  any  new residential address without the prior written approval of a Probation Officer;

(b)to attend an assessment for a substance abuse programme as directed by a Probation Officer and to attend and complete any counselling, treatment  or  programme  as  recommended  by  the  assessment  as directed by, and to the satisfaction of, a Probation Officer;

(c)      to attend an assessment for a Departmental programme as directed by a Probation Officer and to attend and complete any counselling, treatment  or  programme  as  recommended  by  the  assessment  as directed by, and to the satisfaction of, a Probation Officer;

(d)to attend and complete an appropriate anger management programme to the satisfaction of a Probation Officer, with the specific details of the appropriate programme to be determined by a Probation Officer;

(e)      not to associate with or contact his ex-partner without the prior written approval of a Probation Officer.

[24]     In addition, Mr Walker is sentenced to a term of 150 hours’ community work.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth for respondent

Counsel:

J M Woodcock, New Plymouth for appellant