Walker v Police - [2012] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-25 [2012] NZHC 2628

SHYAN ELJLAY TAWHITI WALKER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 9 October 2012

Counsel: R Philip for the Appellant
N M Graham for the Respondent

Judgment: 9 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr R Philip, Bate Hallett Laywers, Solicitors, Hastings
Ms N M Graham, Elvidge & Partners, Office of the Crown Solicitor, Napier

WALKER V POLICE HC NAP CRI-2012-441-25 [9 October 2012]

[1] Mr Walker appeals against a sentence of 25 months imprisonment for burglary. The actual sentence imposed on the date was 26 months. There was an additional month imposed following remission of fines. However, the appeal is directed to the 25 months for burglary. This sentence was cumulative on sentences being served of a total of 7 months for a number of offences which I will come to.

[2] The offences under appeal occurred on seven occasions between 10 February and 30 March 2012. Mr Walker climbed over a two metre high electrified security fence around commercial premises in Waipukurau. He stole scrap copper or other metal from bins in the yard of the premises. This occurred late at night or in the early morning. The value of the metal taken on each occasion varied from around
$80 to $200. The total taken on the seven occasions, at the lower value estimates, is

$640 on six occasions and an unknown amount, but presumably much the same, on the other occasion.

[3] Mr Walker was charged on 12 April 2012. He pleaded guilty on 8 May and was sentenced in the District Court on 27 June 2012.

[4] The effective end sentence of 7 months the appellant was then serving related to the following, taking the details from Mr Philip’s submissions for the appellant. On 27 April 2012 the appellant was sentenced to 1 month imprisonment for preparing to commit a crime in a public place, committed on 6 February 2012, and to
7 months imprisonment for an assault with a blunt weapon and wilful damage, which occurred on 10 February 2012, and 1 month imprisonment for theft of copper wire from a fenced paddock on Omahu Road, committed on 7 March 2012. A further sentence of 7 months imprisonment was imposed for driving whilst suspended on 15
March 2012 (third or subsequent). All sentences were concurrent.

[5] The seven burglary charges were not dealt with in conjunction with the other charges because the appellant sought further legal advice before entry of a plea. However, as will be apparent, the burglary offending I am now dealing with occurred over the same time period as the other offending.

[6] The essence of the Judge’s reasons for the sentence were as follows:

[7] In sentencing I do also have to bear in mind the totality of the offending. Each of these burglaries carries a maximum penalty of 10 years’ imprisonment. However, obviously, we cannot approach it in that way. It was all part of…

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 [2012] NZHC 2628
Case: [2012] NZHC 2628
Decision Date: 9 October 2012

CaseChat Overview and Summary

The case of Walker v Police concerns an appeal by the appellant, Shyan Eljlay Tawhiti Walker, against a sentence of 25 months imprisonment for burglary. The appellant, who was serving concurrent sentences for various offences, was sentenced in the District Court for seven instances of burglary between February and March 2012. The appellant committed these burglaries by climbing over a security fence to steal scrap metal from commercial premises. The total value of the stolen items was approximately $640, with the value on each occasion ranging between $80 and $200. The appellant pleaded guilty and was sentenced to 26 months imprisonment, with the additional month resulting from the remission of fines. The appeal focused on the 25-month sentence for burglary.

The primary legal issue before the court was whether the uplifted starting point for the burglary sentence of 2 years and 6 months was manifestly excessive. The appellant's counsel argued that the starting point should have been no more than 15 to 18 months imprisonment, given the nature and circumstances of the offences. Counsel pointed to the low value of the stolen property, the lack of risk of confrontation, and the absence of sophistication or wanton destruction of property. In contrast, the Crown submitted that the starting point was within the appropriate range, supported by reference to several cases.

The court found that the uplifted starting point of 2 years and 6 months was manifestly excessive. While acknowledging the seven separate instances of criminal entry, the court emphasised the low-level nature of the offending, which did not pose any risk to other people. The court concluded that a 12-month starting point for one of the offences was realistic, and therefore, the uplifted starting point for all the burglaries should be around 15 months. After making allowances for remorse and a guilty plea, the court substituted a sentence of 14 months imprisonment for the burglary offences, cumulative on the existing sentences.

The court quashed the original sentence of 2 years and 2 months imprisonment and substituted a sentence of 14 months imprisonment for the burglary offences, with a cumulative sentence of 1 month imprisonment following the remission of fines. These sentences are to run concurrently with the sentences imposed on the appellant in the District Court on 27 April 2012.

Orders