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Walker v Police

Walker v Police

Case [2018] NZHC 1388 12 June 2018

Sentencing

Aggravating Features

Mitigating Factors

Credit for Guilty Plea

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-5

[2018] NZHC 1388

BETWEEN
CALLUM MATTHEW WALKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 June 2018

Appearances:

S Saunderson-Warner for Appellant R Smith for Respondent

Judgment:

12 June 2018

JUDGMENT OF MANDER J

[1] The appellant, Mr Callum Walker, was sentenced to two years’ imprisonment on a charge of injuring with reckless disregard, a charge of obstructing police, two charges of shoplifting, and two charges of breaching release conditions.1 He appeals that sentence on the basis it was manifestly excessive. He says the overall starting point was too high, and the discount for personal mitigating features, including his guilty plea, was too low.

Background

[2] The most serious offending for which Mr Walker was for sentence was the charge of injuring with reckless disregard for the safety of other persons. On 30 September last year, Mr Walker, over the course of that day, became increasingly abusive and aggressive towards his 16-year-old sister. In the early evening, he smoked cannabis with his partner and became more aggressive. The sister called the police

1 Police v Walker [2018] NZDC 3794.

WALKER v POLICE [2018] NZHC 1388 [12 June 2018]

who attended the address to issue Mr Walker with a Police Safety Order. Mr Walker locked himself in his bedroom and was hostile and abusive towards the attending officers.

[3] The police ultimately resorted to using force to enter the room. One of the officers used his shoulder to force the door open. The architrave of the door gave way. Mr Walker responded by throwing his body against the door, slamming it shut. The officer managed to force entry into the room, during the course of which the architrave fell into the room. Mr Walker grabbed the architrave and “slammed” it into the officer’s face. The officer raised an arm to protect himself, however, the architrave struck him on the forehead and wrist, resulting in an exposed nail being driven into his hand, causing a puncture wound.

[4] Despite Mr Walker being told he was under arrest for assault, he continued to resist and the police were required to resort to using pepper spray, a baton and handcuffs to restrain him. No explanation was offered by Mr Walker for his actions. It was submitted on his behalf at sentencing that he was under the influence of illicit substances.

[5] The two shoplifting offences involved items that Mr Walker stole from The Warehouse in June and July 2017. On the first occasion he took a pair of headphones valued at $159 and hid them in his jacket. When the security alarm was triggered, Mr Walker handed his jacket to an associate before being searched, successfully evading detection. On the second occasion, he took some cabling valued at $10 and put it in his backpack.

[6] In September 2017, Mr Walker twice breached release conditions that had been imposed on him after his release from prison…

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 [2018] NZHC 1388
Case: [2018] NZHC 1388
Decision Date: 12 June 2018

CaseChat Overview and Summary

Walker v Police [2018] NZHC 1388 is an appeal against sentence by the appellant, Mr Walker, who was sentenced to two years' imprisonment on a charge of injuring with reckless disregard, a charge of obstructing police, two charges of shoplifting, and two charges of breaching release conditions. Mr Walker appeals the sentence on the basis that it was manifestly excessive. He argues that the overall starting point was too high, and the discount for personal mitigating features, including his guilty plea, was too low. The court was required to determine whether there was an error in the sentence imposed and whether an alternative sentence should be imposed. The appeal could only be allowed if the court was satisfied that there was an error in the sentence imposed and that an alternative sentence should be imposed. If the sentence could be properly justified having regard to relevant sentencing principles, the appeal Court could not substitute its own views for those of the sentencing Judge.

The starting point for the charge of injuring with reckless disregard was set at two years' imprisonment. The appellant submitted that the starting point was too high and failed to reflect the lesser mens rea of recklessness. The court noted that the use of the architrave as a weapon may qualify as a moderately aggravating feature, but it was not a situation where Mr Walker had intentionally armed himself with a weapon. Rather, the architrave was immediately at hand and a means by which Mr Walker could continue to resist police forcing themselves into his room. The court agreed that a starting point of two years' imprisonment, in the circumstances of this particular case, for a charge of injuring with reckless disregard fell outside the available range in the exercise of the Judge's discretion. In the court's view, the appropriate starting point would have been one of 18 months' imprisonment.

The court found no merit in the argument that the uplifts to the starting point were too great. The uplifts were well within range. The court also found no merit in the argument that inadequate credit had been extended for mitigating factors. The credit extended by the sentencing Judge, in combination with the considerations of remorse and the offender’s personal circumstances, were appropriate.

The appeal was allowed. The sentence of two years' imprisonment on the charge of injuring with reckless disregard was quashed and substituted with a sentence of 19 months' imprisonment. The sentences imposed in respect of the other charges remain unchanged, as do the special release conditions.

Orders