Walker v Police

[2021] NZHC 2149

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-000050

[2021] NZHC 2149

BETWEEN

STEFAN MARCEL MCDONALD WALKER
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 August 2021
Appearances:	J Buckle for Appellant B Harris for Respondent
Judgment:	17 August 2021

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

Solicitors:

Crown Solicitor, Hamilton

WALKER v NEW ZEALAND POLICE [2021] NZHC 2149 [18 August 2021]

[1]    Mr Walker pleaded guilty in the District Court to a charge of breaching his prison release conditions, four charges of shoplifting and one charge of breaching police bail. On 23 June 2021 Judge N Cocurullo sentenced Mr Walker to ten months imprisonment.1 Mr Walker appeals against the decision on the basis that errors by the Judge in structuring the sentence resulted in an end sentence that was manifestly excessive.

The charges

[2]    The shoplifting charges were laid as a result of three separate incidents that occurred in January and on 24 May 2021. Each involved Mr Walker taking goods from shops without paying for them. In total he stole four pairs of sports shoes having a value of approximately $900 and health and beauty products having a value of approximately $150.

[3]    Mr Walker had earlier been released from prison on 18 November 2020. Two days later, on 20 November 2020, he reported to Community Corrections as required by his prison release conditions. There he was given a written instruction to report to Community  Corrections  each  Wednesday  at  4  pm  unless  otherwise  advised.  Mr Walker complied with these conditions until 19 May 2021, when he failed to report as instructed.

[4]    The charge of breaching police bail was laid after Mr Walker was arrested on the first shoplifting charge. He was released on police bail on 3 June 2021 and then failed to appear in Court the following day.

The sentence

[5]    The Judge took the lead charge as being that relating to breach of the prison release conditions. He selected a starting point on that charge of six months imprisonment. The Judge then applied an uplift of two months to reflect the remaining charges. He then applied a further uplift of six months to reflect the fact that

1      Police v Walker [2021] NZDC 12511.

Mr Walker has numerous previous convictions both for shoplifting and breaching his prison release conditions.

[6]    From the resulting sentence of 14 months imprisonment the Judge applied a discount of 25 per cent, or six months, to reflect Mr Walker’s guilty pleas. This produced the end sentence of ten months imprisonment.

Grounds of appeal

[7]    On Mr Walker’s behalf Mr Buckle contends the Judge adopted a starting point that was manifestly excessive on the charge of breaching the prison release conditions. He takes no issue with the uplift to reflect the remaining charges but contends the uplift of six months to reflect previous convictions was excessive and/or disproportionate. He contends these errors resulted in an end sentence that was manifestly excessive.

[8]    Mr Buckle suggests a starting point of no more than two months imprisonment was warranted on the charge of breaching prison release conditions and that an uplift of three to four months was appropriate for the shoplifting charge that resulted in theft of property worth between $500 and $1,000. He contends that uplifts of no more than one month each ought to have been applied on the remaining shoplifting charges. He says the charge of breaching police bail should have resulted in a conviction and discharge. Mr Buckle therefore submits a sentence of no more than seven to nine months imprisonment was warranted before taking into account guilty pleas.

[9]    Mr Harris acknowledges for the respondent that the starting point the Judge selected on the charge of breaching prison release conditions was outside the available range. However, he submits the starting point of eight months imprisonment on all charges was within range. Mr Harris also initially contended that the six month uplift to reflect Mr Walker’s previous convictions was within range when considering the quantity, type and frequency of Mr Walker’s previous convictions. During the hearing, however, Mr Harris acknowledged that the uplift to reflect previous convictions could not be justified.

Decision

[10]   Mr Buckle has referred me to several sentencing decisions in which starting points of two to three months imprisonment have been imposed for offending broadly similar to that encompassed by the charge of breaching prison release conditions in the present case. Starting points of up to six months imprisonment have been imposed for much more serious offending.2

[11]   In the present case it needs to be borne in mind that Mr Walker appears to have complied with his prison release conditions for a period of approximately six months before breaching them by failing to report as instructed on 19 May 2021. Furthermore, the charge related  to  a  single  breach  rather  than  repetitive  breaches.  I  accept Mr Buckle’s submission that, if this had been Mr Walker’s first conviction for breaching prison release conditions, a sentence of imprisonment would not have been imposed. A sentence of imprisonment can only be justified now on the basis that this is the fifteenth occasion on which Mr Walker has breached prison release conditions. Even taking into account his previous convictions, however, I do not consider a starting point of more than three months imprisonment was justified on the charge of breaching prison release conditions.

[12]   Similarly, the shoplifting charges would never have warranted a sentence of imprisonment but for the fact that Mr Walker has numerous previous convictions for shoplifting and other offending involving dishonesty. The offending was clearly brazen, but the total amount stolen had a value of less than $1,000. In those circumstances I consider an uplift of no more than five months was required to reflect the four shoplifting charges. I consider the charge of breaching police bail also justified an uplift of one month because there was no excuse for Mr Walker failing to attend at Court the day after he was released on police bail.

[13]   All these sentences already factor in Mr Walker’s previous convictions for similar offending. It follows that a further uplift to reflect this factor cannot be

2      Allen v Department of Corrections [2017] NZHC 2902; Green v Department of Corrections [2015] NZHC 1169; Jenkins v Department of Corrections [2014] NZHC 2895; King v Department of Corrections [2013] NZHC 3378; Whichman v Department of Corrections [2013] NZHC 3075, (2013) 27 CRNZ 92; Forsyth v Police [2013] NZHC 139; Crosswell v New Zealand Police & Department of Corrections [2012] NZHC 2435.

justified. I therefore consider a global sentence of no more than nine months imprisonment on all charges to be appropriate before taking into account mitigating factors.

[14]   A discount of two months one week, or 25 per cent, is available to reflect the guilty pleas. This reduces the sentence to one of six months three weeks imprisonment. I consider that to be an appropriate end sentence.

Result

[15]   The appeal against sentence is allowed. The sentence of ten months imprisonment on the charge of breaching prison release conditions is quashed. In its place I impose a sentence of six months three weeks imprisonment on that charge. The concurrent sentences of two months imprisonment imposed on the remaining charges are unaffected.

Lang J