Walker v Police
[2021] NZHC 2630
•4 October 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-083
[2021] NZHC 2630
BETWEEN ROBERT WALKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 October 2021 Appearances:
A Burns for Appellant
L J Evans for Respondent
Judgment:
4 October 2021
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 4 October 2021 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
WALKER v NEW ZEALAND POLICE [2021] NZHC 2630 [4 October 2021]
[1] Following a Judge-alone trial in the District Court Judge R G Marshall found Mr Walker guilty on a charge of burglary and a charge of intentional damage.1 On 7 July 2021, the Judge sentenced Mr Walker to 18 months imprisonment.2
[2] Mr Walker appeals against sentence.3 He contends the Judge ought to have sentenced him to home detention rather than imprisonment.
Factual background
[3] Mr Walker faced two charges of burgling the Howard Morrison Performing Arts Centre in Central Rotorua. These related to burglaries of the premises that occurred over the weekends of 27-28 November and 4-5 December 2020. Judge dismissed the charge relating to the latter but found the other charge proved.
[4] In November 2020 the centre was undergoing repairs for damage caused by an earthquake. Mr Walker was working for a sub-contractor engaged to carry out work on the building.
[5] The building was secured on the evening of Friday 27 November 2020. At some stage during the weekend Mr Walker climbed through a fence that had been erected around the construction site. He then gained entry to the building by climbing a scaffold at the front of the building. This took him to a window that he entered.
[6] Once inside the building, Mr Walker cut various cables and then used a ladder to climb into a large ducting unit. He used this to gain access to a room containing the air conditioning equipment for the building. Once inside that room Mr Walker caused a considerable amount of damage by cutting cables and taking doors off switchboards. He caused an extensive amount of damage to the room.
[7] Mr Walker’s role in the offending was discovered after the police obtained a fingerprint lift from the inside of an electrical box in the air conditioning room. The
1 New Zealand Police v Walker [2021] NZDC 13417.
2 New Zealand Police v Walker [2021] NZDC 13830.
3 Mr Walker originally appealed against both conviction and sentence but abandoned the appeal against conviction prior to the hearing before me.
Judge considered there was no credible explanation for Mr Walker’s fingerprint in that particular location other than that it had been left there during the burglary.
[8] The burglary had significant consequences. First, it required substantial financial outlay to repair. This cannot be quantified for present purposes because damage was caused during both burglaries and it is not possible to determine the order in which it occurred. Secondly, there was considerable delay in completing the remedial work because of the need to repair the damage caused by the two burglaries. The burglaries also meant the head contractor was required to employ increased security at the site.
The Judge’s decision
[9] The Judge considered the offending was planned but not sophisticated. It resulted in wanton damage being caused to the building and this has resulted in considerable financial loss. The offending was aggravated by the fact that Mr Walker had targeted the premises through his employment on the site. However, the fact that the building was an unoccupied commercial building meant there was low risk of potential harm to others in the vicinity.
[10] Taking those factors into account, the Judge considered a starting point of two years imprisonment was appropriate. He reduced this by three months to reflect the fact that Mr Walker had been subject to restrictive EM bail conditions before sentencing. He then reduced the sentence by a further three months to reflect the fact that Mr Walker had not offended for approximately ten years. This resulted in an end sentence of 18 months imprisonment.
[11] The Judge declined to impose a sentence of home detention for the following reasons:4
[19] I have considered whether a sentence of home detention would meet the principles and purposes of sentencing and in my view it would not. This is serious offending of these commercial premises and an additional factor that I omitted to emphasise was the impact on that Rotorua community for this type of offending.
4 New Zealand Police v Walker, above n 2.
[20] Given the seriousness of the offending, in my view a deterrent message needs to be sent to you Mr Walker and other people that target premises like this albeit for small personal gain but wreaking, and you must have appreciated it, considerable havoc in damaging the equipment and operation of this centre for the sake of as I say not a lot of money for scrap metal.
[21] I do not consider an alternative sentence of home detention meets the principles and purposes of sentencing. The end sentence on the charge of burglary will be one of 18 months’ imprisonment. In addition to that you will have the standard release conditions and the following special release conditions for six months after your sentence expiry date as set out in the pre- sentence report which is to:
…
Grounds of appeal
[12] On Mr Walker’s behalf Mr Burns acknowledges that the pre-sentence report recommended a sentence of imprisonment. He points out, however, that the report also suggested that Mr Walker was at low risk of reoffending and low risk of harm to others. In addition, the fact that Mr Walker had complied with the conditions of an earlier grant of EM bail meant that he was likely to comply with the conditions of a sentence of home detention.
[13] Mr Burns points out that Mr Walker has not been before the Court since 2012. He submits that, given the lack of recent previous convictions and his compliance with the recent grant of EM bail, Mr Walker ought to have received a sentence of home detention rather than imprisonment.
Decision
[14] A decision whether or not to convert a short sentence of imprisonment to a sentence of home detention constitutes the exercise of a judicial discretion. As a result, an appellate Court will only interfere where the sentencing Judge has taken into account irrelevant considerations, has failed to take into account relevant considerations or where the decision was plainly wrong.
[15] The discretion is not, however, unfettered. It must be exercised having regard to the purposes and principles contained in the Sentencing Act 2002.
[16] The passage set out above makes it clear that the Judge applied the sentencing principles of deterrence and denunciation in deciding to sentence Mr Walker to imprisonment rather than home detention. As a result, it cannot be argued that he took into account irrelevant considerations or failed to take into account relevant considerations.
[17] As the Judge pointed out, Mr Walker’s offending involved several aggravating features. It was obviously pre-meditated and resulted in considerable damage and financial loss. It also involved elements of breach of trust. Mr Walker gained knowledge about the site that he burgled through his employment. He used that knowledge to carry out the burglary. In addition, the offending had the potential to cause his employer considerable reputational damage. Taking these factors into account I have no doubt the Judge was plainly correct to impose a sentence of imprisonment rather than home detention.
Result
[18]The appeal against sentence is dismissed.
Lang J
0
0