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…

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 [2021] NZHC 2149
Case: [2021] NZHC 2149
Decision Date: 17 August 2021

CaseChat Overview and Summary

In Walker v Police, the appellant, Stefan Marcel McDonald Walker, challenged the sentence imposed by the District Court. Walker had pleaded guilty to breaching his prison release conditions, four counts of shoplifting, and one count of breaching police bail. The District Court Judge sentenced Walker to ten months imprisonment. Walker appealed on the basis that the Judge made errors in structuring the sentence, resulting in an end sentence that was manifestly excessive. The primary legal issue was whether the starting point and uplifts applied by the Judge were justified and whether the overall sentence was excessive.

The High Court found that the starting point of six months for the breach of prison release conditions was excessive, as was the six-month uplift for previous convictions. The Court accepted that a starting point of no more than three months was appropriate for the breach of prison release conditions, given Walker’s compliance with conditions for six months prior to the breach. For the shoplifting charges, the Court considered an uplift of no more than five months appropriate. The Court also found that the uplift for breaching police bail should be one month. After taking into account the guilty pleas, the Court concluded that a global sentence of no more than nine months was appropriate. With a discount for guilty pleas, the appropriate sentence was six months three weeks imprisonment.

The appeal was allowed, and the sentence of ten months imprisonment was quashed. In its place, the Court imposed a sentence of six months three weeks imprisonment on the charge of breaching prison release conditions, with concurrent two-month sentences on the remaining charges. This outcome reflected a more balanced approach to sentencing, considering Walker’s previous convictions but ensuring that the sentence was not manifestly excessive.

Orders