Walker v Police
[2018] NZHC 1388
•12 June 2018
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 in February 2017. On one occasion, he failed to report to his probation officer, and on the other he was found in possession of drugs.
District Court sentencing
[7] In sentencing Mr Walker, Judge Turner noted the pre-sentence report assessed him as a medium risk of harm to others and at high risk of reoffending due to his “poor
engagement” with past rehabilitative sentences and history of offending. This included previous violence towards police and family members. Reference was made to a prior period in prison when Mr Walker intentionally damaged a television and was caught with a sharpened chair leg. The report writer also assessed Mr Walker as a high risk drug user. Mr Walker has admitted to having consumed an array of drugs, including synthetic cannabis, methamphetamine and hallucinogens.
[8] In respect of the lead charge of injuring with reckless disregard, the Judge identified the aggravating features as including the use of a weapon, attack to the head, and the fact the victim was a police officer acting in the course of his duty. It was noted that while the violence was not extreme it did follow an extended period of aggression and abuse which had, no doubt, been aggravated by the consumption of illicit drugs.
[9] In setting the starting point, Judge Turner drew on the guideline decision of Nuku v R, expressly noting the need to make an appropriate adjustment for the lesser charge of injuring with reckless disregard, rather than that of having an intention to injure.2 Drawing on the identified bands in Nuku, the Judge considered the offending fell within Band 2 where starting points of up to three years’ imprisonment were considered appropriate where three or less aggravating features are present. Allowing for the lesser mens rea involved in Mr Walker’s offending, Judge Turner adopted a starting point of two years’ imprisonment.
[10] An uplift of three months was then applied in recognition of the other charges for which Mr Walker was for sentence. Three months for the fact the offending occurred while Mr Walker was on release conditions was added. A further two month uplift was then applied to reflect Mr Walker’s previous convictions for violence and theft and the need for personal deterrence. That brought the overall starting point to one of two years and eight months’ imprisonment.
[11] Notwithstanding that the report writer had recorded Mr Walker as having shown little remorse, the Judge was prepared to acknowledge that Mr Walker had written a letter of apology to the victim and had been willing to attend a restorative
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
justice conference. The Judge accepted that since Mr Walker’s remand in custody he had taken “some steps to take stock” of his life and was beginning to show some insight into the causes of his offending. Judge Turner was also prepared to acknowledge Mr Walker’s willingness to pay reparation. Together with credit for the entry of his guilty pleas, an effective sentence of two years’ imprisonment was imposed.
Approach to appeal
[12] Mr Walker’s appeal can only be allowed if I am satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.3 If the sentence can be properly justified having regard to relevant sentencing principles, the appeal Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the Judge’s sentencing discretion is to be interfered with.
[13] It is not sufficient that a Judge may have made an error in his reasoning. The focus is on the sentence imposed rather than the process by which the sentence was reached or its component parts.4
The appeal
[14] Ms Saunderson-Warner on behalf of Mr Walker submitted the sentence which ultimately resulted was manifestly excessive. She alleged three errors in support of this ground of appeal. Firstly, she submitted Judge Turner had adopted a starting point in relation to the injuring charge that was too high and failed to reflect the lesser mens rea of recklessness. Secondly, that the uplifts to that starting point were too great. Thirdly, that despite Judge Turner indicating he would apply the “usual credit” for a guilty plea, that had not been reflected in the final sentence imposed.
[15] The Crown submitted the sentencing Court made no error in the way it applied Nuku in an adjusted form. Mr Smith for the Crown submitted the cumulative uplifts in recognition of the other offending for which Mr Walker was for sentence, and his
3 Criminal Procedure Act 2011, s 250.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
long and recent history for relevant previous offending, were well within range. He submitted that a total discount of 25 per cent for remorse and Mr Walker’s guilty pleas was appropriate.
Discussion
The starting point
[16] No issue is taken with Judge Turner’s use of the Court of Appeal’s guidance in Nuku in setting the appropriate starting point for a charge of injuring with reckless disregard. In Waitohi v R, that Court held that Nuku may provide useful guidance by analogy in such cases.5 However, care is required to account for the different mental element and the effect this may have on the applicability of some of the Nuku factors.6
[17] Band 2 of Nuku, which was applied by Judge Turner, is for offending in respect of which three or fewer of the listed aggravating features are present. It attracts a starting point of “up to three years”. The sentencing Judge identified the use of a weapon, attack to the head, and attack on a police officer, as aggravating features. He also noted the potential for a more serious injury. Having observed that a starting point of up to three years imprisonment was appropriate for offending that fell within Band 2 of Nuku, it follows that the Judge must have considered Mr Walker’s offending would have fallen at the top of that band but for the lesser mens rea.
[18] It is accepted that because the victim was a police officer acting in the execution of his duty, that aggravating feature must be reflected in the sentence. It is an aggravating factor that is specifically recognised in the Sentencing Act 2002.7 As submitted by Mr Smith, violence against police officers has long been treated by the Courts as an aggravating feature justifying an increase in the starting point.8 The need for a condign response by the Court when a police officer is attacked will increase an otherwise appropriate sentence and is to be viewed as a very serious aggravating factor.9
5 Waitohi v R [2014] NZCA 614 at [16].
6 Waitohi v R, above n 4; Harnay v Police [2014] NZHC 2015.
7 Sentencing Act 2002, s 9(1)(fa).
8 R v Bryant [1980] 1 NZLR 264 (CA); R v McKay CA307/84, 3 April 1985; R v Namana [2001] 2 NZLR 448 (CA); Taylor v R [2013] NZCA 417.
9 Cooper-Siggleko v R [2012] NZCA 580.
[19] Mr Smith responsibly acknowledged that the injury caused to the officer did not of itself represent a separate aggravating feature and that, having regard to its nature, it was no more than was required to meet the threshold for the injuring element of the charge. The injury was accepted as incapable of constituting a discrete aggravating feature.
[20] In relation to the targeting of the head, Ms Saunderson-Warner submitted that caution needs to be applied in circumstances where it is not alleged there was any intention to inflict injury, but, rather, that the defendant had been reckless. Consideration of this factor tends to highlight the appropriateness of the charge and how the factual particulars of the offending may be required to be interpreted in order to align with the charge laid.
[21] The issue is further complicated by the particulars describing the assault as set out in the summary of facts. Mr Walker is described as having grabbed the architrave, which is previously described as having “fallen in to the room”. It is not entirely clear whether Mr Walker has picked the architrave up and used it as a club, or pushed the architrave that has come away from the wall into the officer. The latter interpretation is more consistent with the charge, whereas the former description would support a targeting of the head.
[22] Ms Saunderson-Warner submitted that the aggravating element of using the architrave as a weapon may qualify as a “moderately” aggravating feature, but that it was not a situation where a person had intentionally armed themselves with a weapon. Rather, she submitted, the architrave was immediately at hand and a means by which Mr Walker could continue to resist police forcing themselves into his room. Ms Saunderson-Warner argued that while pushing the architrave towards the officer was certainly reckless, it was not a situation where he had deliberately armed himself for the purpose of inflicting an injury.
[23] In response Mr Smith described Mr Walker’s use of the architrave as “simply pushing it towards the officer” could not realistically reflect what had occurred. Furthermore, he submitted that the item was clearly capable of causing serious injury, being a heavy wooden object with a protruding nail. Mr Smith submitted that the
opportunistic use of the architrave as a weapon reflected the absence of any premeditation or intention to injure, but the fact remained that a weapon was used.
[24] In Setu v R, the Court of Appeal observed that sentencing Judges need to exercise judgment in assessing not only the number of aggravating factors but also their gravity.10 The placing of a particular case within a band is also very much an evaluative exercise with there being significant overlap at the margins.11 That is reflected in the bands set out Nuku v R:12
The following bands apply:
(a)Band 1: Where there are few aggravating features, the level of violence is relatively low and the sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band 2: A starting point of up to three years will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)Band 3: A starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within Band 3, even if there are few other aggravating features.
[25] The approach taken by the sentencing Judge in this case would indicate that he considered the offending would have fallen at the top of Band 2 had it been a charge of injuring with intent to injure. However, Band 3 provides for a starting point of two years up to the statutory maximum where three or more aggravating features are present which in combination are particularly serious. There is an obvious overlap between Bands 2 and 3. What is apparent is that simply because three aggravating factors are present, it does not necessarily follow that the offending will fall into the top of Band 2.
10 Setu v R [2018] NZCA 127.
11 Setu v R, above n 9.
12 Nuku v R, above n 2, at [38].
[26] As stressed by the Court of Appeal, the application of the bands is an evaluative exercise. However, because three factors are present, it does not mean a certain prescribed level of sentence has to be imposed. In the present case, there was clearly a very significant aggravating feature arising from Mr Walker’s offending, which was that the assault was on a police officer. However, I do not consider the use of the architrave as a weapon in the circumstances of this case gives rise to the ordinary aggravation of an offence usually associated with that factor.
[27] Similarly, the fact the officer was struck in the head does not mean, having regard to the nature of the allegation, that Mr Walker was seeking to target the head in the circumstances of this case. Judge Turner was correct to take both factors into account, but I do not consider the aggravating features in combination would likely have resulted in a three year starting point had the charge included the mens rea of an intention to injure.
[28] Ms Saunderson-Warner referred to a number of sentencing decisions involving charges of injuring with reckless disregard which she relied upon to demonstrate that the sentence in the present case was too high.13 Two of the cases cited involved Solicitor-General appeals. While I acknowledge that more modest sentences have been imposed for what would have to be considered more serious offending, I do not consider they provide much assistance. Inevitably, the facts and circumstances of each individual case will vary. Illustrative of that difficulty is that none of the other cases involved violence against a police officer, a point on which Mr Smith placed some emphasis.
[29] Having acknowledged that important feature, I consider 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 my view, the offence would have attracted a starting point in the range of two to two and a half years had Mr Walker been facing a charge alleging an intention to injure. Making an appropriate adjustment for the lesser offence of
13 Solicitor-General v SC [2017] NZHC 2252; Gowing v R [2017] NZCA 133; Police v Filipo [2016] NZHC 2620.
injuring with reckless disregard, I consider the appropriate starting point would have been one of 18 months’ imprisonment.
Uplifts to the starting point
[30] I do not consider this aspect of the appeal has merit. Judge Turner applied an uplift of three months in recognition of the charges of theft, breach of release conditions and obstruction of police. Having regard to the discrete nature of this offending, the uplift was well within range.
[31] The uplift of three months to reflect that the offending occurred while Mr Walker was subject to release conditions was similarly available to the Judge. Mr Walker was subject to release conditions at the time he offended in June, July and September 2017. It is clear from the attitude he was exhibiting at the time, as recorded in pre-sentence reports, that Mr Walker was unmotivated to comply with his release conditions which he largely ignored.
[32] Mr Walker has six previous convictions relating to dishonesty, seven previous convictions for violence, and convictions for wilful damage, possession of weapons, and resisting police, including a prior conviction for assaulting police. I accept the Crown’s submission that the uplift of two months to reflect this prior offending and the obvious need for personal deterrence, in response to offending which represented a continuation of Mr Walker’s prior criminal history, was generous. The overall uplift of eight months’ imprisonment was unremarkable.
Credit for mitigating factors
[33] Ms Saunderson-Warner’s submission that inadequate credit had been extended for mitigating factors identified by Judge Turner rests on the Judge’s remark in his sentencing notes, that the “usual credit available for the entry of guilty pleas” would be applied. Ms Saunderson-Warner submitted that should that be interpreted as a reference to the maximum credit of 25 per cent which is available to a defendant should they plead guilty at the first reasonable opportunity.14 This comment by the
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Judge came after his acknowledgement that he was prepared to account for Mr Walker’s remorse and recent efforts by him to address his situation.
[34] In the event, Mr Walker pleaded guilty at the case review hearing and not at the first reasonable opportunity. It is reasonable to assume that Judge Turner extended a 20 per cent discount for the guilty plea and an additional 5 per cent credit for circumstances personal to Mr Walker, hence the 25 per cent reduction from the overall starting point. Such an approach cannot be criticised, and Ms Saunderson-Warner responsibly acknowledged that if I consider that was the approach adopted by the Judge, she would not press the matter further. It should be noted that even should a defendant plead guilty at the first reasonable opportunity it does not follow that the defendant is “entitled” to a 25 per cent reduction. I appreciate that has become the sentencing practice, but the Supreme Court, in R v Hessell, held that all the circumstances of the defendant’s offending, including the strength of the prosecution case, should be taken into account when setting the appropriate credit notwithstanding the timing of the entry of the guilty plea.15
[35] I do not consider, having regard to the timing of Mr Walker’s plea, that the credit extended to him by the sentencing Judge, in combination with the considerations of remorse and the offender’s personal circumstances, were other than appropriate.
Result
[36] The appeal is allowed. The sentence of two years’ imprisonment on the charge of injuring with reckless disregard is 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.
Solicitors:
Sarah Saunderson-Warner, Dunedin RPB Law, Dunedin
15 R v Hessell, above n 13.4
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