Walker v Police

[2013] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-0009 [2013] NZHC 1033

BETWEEN  JAMIE LEE WALKER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 May 2013

Counsel:         B Kilkelly for Appellant

R D Smith for Respondent

Judgment:      9 May 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 803, Dunedin
Counsel:

B Kilkelly, PO Box 1416, Dunedin

WALKER V NEW ZEALAND POLICE HC DUN CRI 2013-412-0009 [9 May 2013]

[1]      At  about  12.30am  on  Monday  10  December  2012,  Mr  Walker  and  Mr Murphy were walking along King Edward Street in South Dunedin.  They passed a Family Store, operated by the Salvation Army.  They took several items of clothing that had been donated to the store.  The property was valued at approximately $30. It belonged to the Salvation Army.

[2]      Mr Walker and Mr Murphy were apprehended a short distance away from where the offending occurred.  They admitted what they had done and returned the property.

[3]      Mr Murphy entered an early plea of guilty to the single charge of theft.  He was sentenced by Judge Flatley in the District Court at Dunedin on 22 February

2013.1    Mr Murphy was ordered to come up for sentence if called upon within 12

months.

[4]      It  is  clear  that  Mr  Murphy  had  a  significant  number  of  relevant  prior convictions to which Judge Flatley referred as “appalling”.   It appears that a non- custodial sentence was imposed at the lowest end of the spectrum2 because the Judge was concerned about consequences of sending Mr Murphy back to an environment in which community work would be undertaken or, even worse, imposing a sentence of imprisonment.

[5]      Mr Walker pleaded guilty later.   His counsel wanted to undertake further research into the question whether there had been any abandonment of the property before a guilty plea was entered.  Mr Walker was sentenced on 26 March 2013 by Judge Coyle.3    The Judge was aware of the sentence imposed on Mr Murphy. However, for whatever reason, the Judge was misinformed about the comparative seriousness of prior offending that had been done by both Mr Murphy and Mr Walker.   No criticism can be made of the District Court Judge for the premise on

which he chose to sentence.

1      Police v Murphy DC Dunedin CRI 2013-012-000237, 22 February 2013 (Judge Flatley).

2      Ordering someone to come up for sentence if called upon is the least restrictive sentence in the hierarchy set out in s 10A(2) of the Sentencing Act 2002.

3      Police v Walker DC Dunedin CRI 2012-012-004148, 26 March 2013 (Judge Coyle).

[6]      In sentencing Mr Walker to a term of 75 hours community work, Judge Coyle acted on a false premise in that he regarded Mr Walker’s prior history of dishonesty offending as more serious than that of Mr Murphy.

[7]      Mr Walker appeals against the sentence imposed.  Mr Kilkelly, on his behalf, acknowledges candidly that if issues of parity did not arise as a result of the more lenient sentence imposed on Mr Walker, there would be no reasonable basis on which to challenge a sentence of 75 hours community work.  However, he submits

that having regard to the principles identified in authorities such as R v Lawson,4

some adjustment is required to the sentence of community work imposed on Mr

Walker.

[8]      The basis for an adjustment to sentence on grounds of disparity relates to public perception of the even-handedness of sentencing for the same offending.  In Lawson, the Court of Appeal put the point as being whether the disparity is so “gross” that a justifiable sense of injustice would persist and right thinking members of the public were likely to say that something had gone wrong in the sentencing

process.5  There is, however, an equally important principle. No greater adjustment is

appropriate than that necessary to protect the integrity of the justice system.   Just because one offender may have received an unduly lenient sentence is no reason to vary the terms of an otherwise appropriate sentence imposed on a co-offender.6

[9]      If I were to view this appeal on the basis of a disparity argument put in that way, I would be more inclined to accept the Crown’s submission that the appropriate sentence should stay intact.  However, in this case I think it is better to approach the question by accepting that Judge Coyle, for understandable reasons, proceeded on a false premise.   That being so, it is preferable that this Court sentence afresh on appeal.    I  do  not  know  what  response  Judge  Coyle  would  have  made  to  the sentencing  issue  had  he  realised  that  his  assessment  of  the  seriousness  of  the

respective offending was incorrect.

4      R v Lawson [1982] 2 NZLR 219 (CA).

5      Ibid, at 223.

6      Mau’u v R [2011] NZCA 385 at para [28].

[10]     As I have said, it cannot be argued that the sentence of 75 hours community work was unjustifiable.  However, when viewed against the sentence imposed on Mr Murphy, there is a disparity that, in my view, should be put right.  Sentencing afresh, rather than looking at this strictly as an appeal issue, I consider that the appropriate sentence to imposed is one of 40 hours community work.   That is the minimum

period available.7    It is not appropriate, in my view, for Mr Walker to receive the

benefit (of what appears to be) the unduly lenient sentence that Mr Murphy obtained.

[11]     The appeal against sentence is allowed.  The sentence of 75 hours community work imposed in the District Court is set aside.   In substitution, a sentence of 40 hours  community  work  is  imposed.    Mr  Walker  shall  report  to  the  Dunedin

Reporting Centre within 72 hours.

P R Heath J

7      Sentencing Act 2002, s 55(2).