Walker v Police

[2013] NZHC 2981

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000268 [2013] NZHC 2981

BETWEEN  CAYNE WALKER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   11 November 2013

Appearances:           M J Kidd for Appellant

R J Y See for Respondent

Judgment:                12 November 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 12 November 2013 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

WALKER v NZ POLICE [2013] NZHC 2981 [12 November 2013]

[1]      On  13 August  2013  Mr  Walker  was  sentenced  by  Judge  Mather  in  the Waitakere District Court to nine months’ imprisonment on a charge of unlawfully taking a motor vehicle.  He received lesser, concurrent, sentences on other charges.1

[2]      Mr Walker appealed against his sentence, essentially on the grounds that the District Court Judge failed to take into account the fact that he (Mr Walker) had suffered two serious assaults while remanded in custody in Mt Eden.  Substitution of a sentence of home detention was sought.

[3]      At Mr Kidd’s request I record that, on 23 July 2013 (following the first assault and while Mr Walker was on remand) Judge O’Driscoll noted the concerns for Mr Walker’s safety in prison and that segregation from other inmates might be required.  The Judge asked that a copy of his comments in this respect be sent to the appropriate authorities.

[4]      Judge O’Driscoll’s comments were reiterated by Judge Ronayne on 1 August. [5]      But Mr Walker was then assaulted for the second time a week later.

[6]      The issue of Mr Walker’s safety in jail was raised with Judge Mather at sentencing, although, as I understand it, no specific submission was made to the effect that his apparent and particular vulnerability meant that the sentence of imprisonment that might otherwise be appropriate would, in his case, be disproportionately severe.2

[7]      Judge Mather was of the view that the only realistic sentence was one of imprisonment.  He said:3

I am aware that you have been on remand in custody and you have suffered some injuries.  That may well be as Mr Kidd says the result of you wanting to distance yourself from gang associates.  You have been in prison before, you know the culture of prisons, and your safety is a concern for the prison authorities.  They need to make sure as far as possible that you are not held

1      NZ Police v Walker DC Waitakere CRI-2012-090-5031, 13 August 2013.

2      Section 8(h) of the Sentencing Act 2002 requires such circumstances to be taken into account on sentencing; see for example R v RHB [2012] NZHC 2879.

3 At [11].

in a prison wing or unit where the risk of injury to you is higher than for any other prison inmate.

[8]      I note that the phrasing of the last sentence here suggests that Judge Mather had in mind the requirements of s 8(h).

[9]      As it transpires, however, at the hearing of the appeal yesterday, Mr Kidd advised that Mr Walker has now been released from jail.  He said he had been unable to contact Mr Walker and thus had no instructions either to abandon the appeal or to pursue it.  But he realistically accepted that it had effectively become moot.

[10]     Accordingly, although I have been prepared to place the background to the matter on record (above) I do not propose to comment further on the merits of the appeal.  I simply say that while the safety of inmates while in custody is plainly a matter of public importance, Mr Walker’s appeal faced a number of impediments.  A conclusion that Judge Mather had erred was far from foregone.

[11]     But, in any event, in light of the fact that Mr Walker is no longer in custody, the appeal is dismissed.

Rebecca Ellis J