Walker v Police - [2022] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-112

[2022] NZHC 2430

BETWEEN
CALVIN BRUCE WALKER

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 22 September 2022

Appearances:

K H White for Appellant L Fiennes for Respondent

Judgment:

22 September 2022

ORAL JUDGMENT OF EATON J

Introduction

[1] Calvin Walker was sentenced in the District Court1 by Judge Duggan on 14 June 2022 to 24 months’ imprisonment, with leave to apply for home detention, in respect charges of breaching intensive supervision;2 receiving over $1,000;3 unlawfully taking a motor vehicle;4 and theft of between $500 and $1,000.5

[2] Mr Walker appeals his sentence on the basis that it was manifestly excessive— the Judge having not provided a discount for personal mitigating factors relating to a

1      New Zealand Police v Walker [2022] NZDC 11508.
2      Sentencing Act 2002, s 70A(a); maximum penalty six months imprisonment or a fine not exceeding $1,500.
3      Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
4      Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.
5      Crimes Act, ss 219and 223(c); maximum penalty one year imprisonment.

WALKER v NZ POLICE [2022] NZHC 2430 [22 September 2022]

s 27 report prepared after the District Court sentencing. He seeks a sentence of home detention.

Facts

[3] In February 2021, Mr Walker had been sentenced to 12 months’ intensive supervision for receiving property (over $1,000). A condition of his supervision was to not possess, consume or use any alcohol or drugs. On 3 November 2021, Mr Walker reported to a probation office and provided a sample of his urine for drug testing. The test returned positive results for methamphetamine and cannabis.

[4] On 4 January 2022, Mr Walker was driving a car which had been stolen the night before, he jacked up a Ford Falcon, removed the left wheel, and put it in the back of the stolen car. When located by police, the car was searched. In addition to the mag wheel, a backpack was found in the car containing stolen property including two passports, two iPhones, as well as other documentation.

Principles on appeal

[5] An appeal against sentence is allowed as of right under s 244 of the Criminal Procedure Act 2011 and in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.7 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.

District Court decision

[6] The Judge considered Mr Walker’s denial of the dishonesty offending and his lack of remorse, as well as his challenges with mental health and drug…

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 [2022] NZHC 2430
Case: [2022] NZHC 2430
Decision Date: 22 September 2022

CaseChat Overview and Summary

Calvin Bruce Walker appeals his 24-month imprisonment sentence for breaching intensive supervision, receiving over $1,000, unlawfully taking a motor vehicle, and theft of between $500 and $1,000. He argues the sentence was manifestly excessive, that the judge did not sufficiently discount personal mitigating factors, and seeks a sentence of home detention. The court examines whether there was an error in the imposition of the sentence and whether a different sentence should be imposed. The appeal against sentence is allowed as of right under s 244 of the Criminal Procedure Act 2011 and in accordance with s 250 of that Act.

The court finds that the starting point and uplift applied for other offending by Judge Duggan were within range. However, the uplift for previous convictions should have been considered alongside a discount for Mr Walker’s guilty plea, resulting in a net discount of 12 per cent. This would have led to a sentence in the District Court of 26.4 months. The court considers the s 27 report, which offers relevant information, and admits it as fresh evidence. The report reveals a clear nexus between Mr Walker’s background and his offending, warranting a discount of 15 per cent to reflect his personal history. This leads to a net discount of 27 per cent to be applied to the starting point of 30 months’ imprisonment, resulting in a sentence of 22 months’ imprisonment. The court adjusts the end sentence to one of 21 months’ imprisonment, allowing a small totality adjustment.

Regarding the appropriateness of a sentence of home detention, the court acknowledges the importance of rehabilitation but also considers Mr Walker’s past behaviour, his failure to engage with rehabilitative options, and his refusal to consent to a no-substance condition. However, the court also takes into account the benefit of the s 27 report, the pro-social influence of Mr Walker’s partner, and the incentives currently operating on him. The court finds that there is a realistic prospect that Mr Walker will be able to change and that home detention would be appropriate. Therefore, the appeal is allowed, and the sentence of 24 months’ imprisonment is quashed, with a sentence of 10 months’ home detention substituted. Special conditions are imposed to discourage a relapse into drug use and offending.

Orders