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 usage. She concluded Mr Walker was unlikely to engage voluntarily with a drug programme.

6      Criminal Procedure Act, ss 250(2) and 250(3).

7      Ripia v R [2011] NZCA 101 at [15].

[7]                  Taking the receiving charge as the lead, the Judge adopted a starting point of 22 months’ imprisonment. An uplift of eight months was applied for the remaining charges. A further uplift of four months (13 per cent) for Mr Walker’s previous convictions brought the starting point up to 34 months’ imprisonment.

[8]                  A 25 per cent discount was applied for his guilty plea and the Judge applied a further totality deduction (1.5 months) to bring Mr Walker’s sentence to 24 months’ imprisonment.

[9]                  When considering home detention, the Judge recognised the issue was finely balanced and noted Mr Walker’s history, his failure to engage in rehabilitation, and his expressed desire to break his cycle of offending. The Judge considered a sentence of 24 months’ imprisonment was appropriate, with leave provided to apply for home detention if a place in a residential treatment programme was secured.

Submissions

Appellant’s submissions

[10]              Ms White, on behalf of Mr Walker, submits the s 27 report reveals matters that justify both a discount for personal factors and a reconsideration of whether home detention is appropriate.

[11]              Whilst accepting that such reports  should  be  provided  at  first  instance,  Ms White submits fresh reports are routinely accepted on appeal, and the present report is substantially helpful.

[12]              She contends there is a clear nexus between Mr Walker’s background and his offending. His offending relates to drug use, which began at age 10 against a background of drug exposure, abuse, neglect, and deprivation. She draws attention to Mr Walker’s mental health difficulties as reducing the culpability of his offending. Ms White proposes a discount of around 15 per cent as appropriate to recognise personal factors.

[13]              The report also refers to the support structures available to Mr Walker, including his first committed relationship, as well as his employable skills. These factors, Ms White submits, encourage a sentence of home detention. She draws attention to Mr Walker’s arson conviction and argues that this makes gaining access to a residential treatment programme as proposed by Judge Duggan highly unlikely, as those facilities tend not to accept people who have such a conviction, due to insurance concerns.

Respondent’s submissions

[14]              Ms Fiennes, on behalf of the Police, submits the District Court decision was appropriate, even accounting for the matters now raised in the s 27 report. She responsibly acknowledges s 27 reports are routinely accepted  as  fresh  evidence.  Ms Fiennes says that the content of the report in this case might realise a discount of 10 to 15 per cent.

[15]              But regardless, Ms Fiennes argues the end sentence that the District Court imposed was not manifestly excessive. She points out that the guilty plea discount of 25 per cent was generous given the plea came only at the second case review hearing. Ms Fiennes submits the Judge departed from the Moses methodology, and that led to a more generous outcome for Mr Walker.    The Judge erred, she says,  by using     Mr Walker’s previous convictions to reach an adjusted starting point of 34 months. Instead, a net discount of 12 per cent should have been applied to a starting point of 30 months (reflecting a 13 per cent uplift for previous convictions and a 25 per cent discount for guilty plea).

[16]              Ms Fiennes submits the concerns which led to the Judge not imposing a sentence of home detention still remain notwithstanding the information in the s 27 report and refers to the fact Mr Walker was in a relationship with his current partner at the time and on intensive supervision at the time that he was using methamphetamine and committed the present offending. Ms Fiennes also points out that Mr Walker had resisted positive engagement with Corrections, had failed to take rehabilitative steps when those opportunities had been presented, and had refused to consent to a condition not to consume alcohol or drugs.

Analysis

[17]              Neither counsel take issue with the starting point or uplift that was applied for other offending by Judge Duggan. A review of the cases reveals that while the starting point adopted in relation to the receiving charge might be described as stern, it was available. Likewise, I consider the eight-month uplift on the remaining charges, that led to a starting point of 30 months’ imprisonment, to have been within range.

[18]              The uplift of four months (13 per cent) for previous convictions, particularly dishonesty offending, again, might be seen as stern but was within range. I agree the uplift should, consistent with Moses, have been considered alongside a discount for Mr Walker’s guilty plea rather than operating to increase the starting point.

[19]              The Courts considering guilty pleas entered at case review hearings adopt discounts of 25 and 20 per cent in a variety of scenarios, including full discounts when pleas are entered following negotiations.8 Despite Mr Walker’s earlier denials in relation to the dishonesty offending, it was, in my view, open to Judge Duggan to provide the full discount.

[20]              This results in a net discount of 12 per cent which would have led to a sentence in the District Court of 26.4 months.

[21]              What then of the s 27 report? The Court of Appeal has recognised, as a general principle, that s 27 reports should not be admitted for the first time on appeal and may be considered with remittal of the sentence to the sentencing court.9 But that is not an invariable rule.10 The failure to secure the report in this case is unexplained. Ms White was not counsel in the District Court. But Ms Fiennes responsibly did not oppose the report being admitted. I have reviewed the report. I am satisfied it does offer relevant information and I consider it is in the interests of justice that it be admitted and considered in determining this appeal, and so I grant leave accordingly.

8      Brown v Ministry of Social Development [2018] NZHC 3131; Watene v Police [2020] NZHC 3011; Miller v Police [2021] NZHC 1104; R v Te Awatea O Poututerangi Ahumai Tawa [2021] NZHC 2091; Bowring v New Zealand Police [2020] NZHC 3252; and Doidge v Police [2021] NZHC 2256.

9      Laipato v R [2021] NZCA 562.

10 Samuels v R [2022] NZHC 432.

[22]              The report, in my view, makes sobering reading.  It is usefully corroborated, to an extent, by accounts from Mr Walker’s sister, his partner, and records from Oranga Tamariki. Mr Walker’s childhood was marked by instability. From the age of three he moved between foster care, his mother’s house, and respite care before moving in with his grandparents at age 15. He suffered extensive neglect and abuse. He was exposed to drug use and began himself using cannabis at the age of 10 and methamphetamine at age 19. His drug use was reinforced by peers at employment in his youth. In addition, he struggles with depression and anxiety and reports his use of methamphetamine to regulate this. The report identifies the childhood experiences as being connected with Mr Walker’s mental health issues, his continued substance abuse, and offending. His offending is recognised as stemming from his drug use, particularly methamphetamine.

[23]              So it is not difficult, in my view, to be satisfied there is a clear nexus between Mr Walker’s background and the present offending. The s 27 report gives a credible account of matters which may be considered to have impaired his choice and diminished his moral culpability, with a resultant causative contribution to offending. In my view, a discount of 15 per cent to reflect his personal history is appropriate.

[24]              That leads to a net discount of 27 per cent to be applied to the starting point of 30 months’ imprisonment which leads to a sentence of 22 months’ imprisonment. Judge Duggan, in the District Court, allowed a small totality adjustment. I agree that is appropriate and I adjust the end sentence to one of 21 months’ imprisonment.

[25]              I then turn to consider whether a sentence of home detention would be appropriate.

[26]              Home detention is an alternative to a short-term sentence of imprisonment.11 The Court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.12

[27]In Fairbrother v R, the Court of Appeal stated:13

11     Sentencing Act 2002, s 15A(1)(b).

12     Section 15A(1)(a).

13     Fairbrother v R [2013] NZCA 340.

[30]      … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]      Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…

[28]              As was recognised by Judge Duggan, this is a finely balanced matter. Rehabilitation is a primary concern in the present case, but does it ultimately hold sway?

[29]              The Judge was correct to note Mr Walker’s past behaviour as a predictor of future conduct. Mr Walker appears to consistently fall back into drug use and offending and has previously breached judicially imposed conditions. This limits the options available to him when a court considers alternative sentences. As the pre- sentence report writer noted, abstinence from substances would be necessary in combination with rehabilitation, oversight, and  testing.  This  is  compounded  by Mr Walker’s failure to engage with rehabilitative options while in custody and his refusal to consent to a no-substance condition. Together, these are all strong factors indicating home detention might be inappropriate.

[30]              But against this, I have the benefit of a very full s 27 report that does inform the Court as to matters relevant to the home detention determination. That includes the pro-social influence of Ms Loader. The report makes clear her understanding of the need for Mr Walker to avoid triggers of his drug use and direct his energy towards more productive pursuits. It also illustrates the incentive Ms Loader provides, as Mr Walker’s first committed relationship, to avoid further relapses into drug use. I accept that factor is undermined by Mr Walker’s offending while on intensive supervision and whilst in a relationship with Ms Loader. I do note, however, that the offending occurred nine months into his intensive supervision sentence and, I am told, occurred after a mental health episode.

[31]              Since the pre-sentence report, Mr Walker is said to have taken greater ownership of his offending and the role of drug use in that offending. His perspective

on counselling appears to have improved. He also appears to recognise the need to not associate with negative influences, though he has clearly had difficulty actioning this in the past.  I  am  very  conscious  of  the  incentives  currently  operating  on Mr Walker, these factors having surfaced since he was sentenced to imprisonment. But I do consider it appropriate to give careful consideration to those factors.

[32]              I am also mindful that he has now spent over three months in custody and I am optimistic that he has been drug-free and during that period has further reflected on the inevitable future he faces if he does not break the cycle of addiction and offending.

[33]              Judge Duggan recognised the value of home detention to  an offender like  Mr Walker. That is reflected in the reservation of leave to apply for home detention if he was accepted into an appropriate programme. That is complicated, however, because Mr Walkers’ acceptance into a residential programme appears unlikely given his conviction for attempted arson. If that is indeed the reality, it poses a long term problem for a person in Mr Walker’s position to secure what might be described as the ideal form of treatment.

[34]As the Court of Appeal noted in R v Hill:14

Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[35]              Is there a realistic prospect that Mr Walker will be able to change? What I find tips the scales in this case is Mr Walker’s level of involvement in recent weeks and months. Firstly, with the author of the s 27 report and, further, with his lawyers in relation to his role in the enquiry into abuse in State care. Mr Walker has, through both those processes, been required to confront his past and, in doing so has identified unhappy experiences as a child which I have no doubt were causative of his addictions that followed both in relation to cannabis and methamphetamine. It is those addictions which have been the catalyst for his criminal offending. My sense is that he having presently engaged with his past, the time seems as ripe as it ever could be for a person

14     R v Hill [2008] NZCA 41 at [37].

in Mr Walker’s position to make important decisions as regards his future. He is very much at a cross-roads and, in my view, the Court ought to take the opportunity the current circumstances present to encourage him down the path of rehabilitation.

[36]              Therefore, on balance and having had the benefit of information that was not available in the District Court, I think Mr Walker is able to change and home detention would be appropriate. I acknowledge there is a risk of further offending which standard conditions of home detention Salone would not adequately address, so there needs to be particular conditions to discourage a relapse into drug use and offending.

[37]              As regards the length of sentence, the usual practice would be to halve the sentence of imprisonment in imposing home detention, as well as to make necessary reductions based on the  time spent in custody.  However, as  noted by  the Court in R v Bisschop, the “proper approach...is an evaluative assessment of all the circumstances”.15 There must be an overall assessment of all factors relevant to the particular offender and consistent with the purposes and principles of the Sentencing Act.

[38]              As I have indicated, this is a finely balanced appeal. If it was not for the additional information in the s 27 report and the likely unavailability of a residential treatment programme, then a different conclusion may have been reached. I am conscious that significant intervention appears necessary to move Mr Walker away from drug use and further offending, as well as improving his mental health. That is going to take not only focus and commitment, but time. Therefore, I fix the appropriate term of a sentence of home detention as being 10 months with post- detention conditions.

Conclusion

[39]              The appeal is allowed. The sentence of 24 months’ imprisonment is quashed and a sentence of 10 months’ home detention substituted. That sentence is to be served at the address recorded in the pre-sentence appendice. In addition to the standard conditions I impose the following special conditions:

15     R v Bisschop [2008] NZCA 229 at [18].

(a)Not to possess, consume, or use any alcohol or drugs not prescribed to him.

(b)He is to submit to testing for alcohol or drugs if required by a police or probation officer.

(c)He is to attend and complete any recommended intervention for alcohol and drug use to the satisfaction of the probation officer.

[40]              Given the risk of further offending I also impose the same three conditions as special post-detention conditions under s 80P of the Sentencing Act 2002

[41]              Mr Walker should be under no illusion that he is being given an opportunity by this Court to confront his long standing addiction. He is encouraged to embrace that opportunity but he will know that a failure to positively engage will have predictable consequences for him.

...................................................

Eaton J

Solicitors:

Public Defence Service, Christchurch Crown Solicitor’s Office, Christchurch