Walker v Police Department

[2018] NZHC 2487

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000035

[2018] NZHC 2487

BETWEEN

BILLY WALKER

Appellant

AND

POLICE DEPARTMENT

Respondent

Hearing:	14 September 2018
Appearances:	G Walsh for the Appellant AAR Pell for the Respondent
Judgment:	21 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 21 September 2018 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel/Solicitors:

G Walsh, Barrister, Hamilton

AAR Pell, Almao Douch, Hamilton

WALKER v POLICE DEPARTMENT [2018] NZHC 2487 [21 September 2018]

Introduction

[1]                   Mr Walker appeals the sentence given by Judge Collin in the Hamilton District Court.1 Mr Walker pleaded guilty to one charge of burglary, and one charge of resisting police.2 Judge Collin sentenced Mr Walker to 21 months’ imprisonment.

[2]                   Mr Walker’s appeal is filed out of time, approximately 11 working days late.3 The stated reason is that he was having difficulties contacting his former counsel. He instructed new counsel, Mr Walsh, who filed this appeal. The appellant submits that no prejudice results and that I should extend the time for filing under s 248(4)(a) of the Criminal Procedure Act 2011. The respondent does not oppose the application. I regard the delay as adequately explained and grant leave accordingly.

The offending

[3]                   Mr Walker and an associate broke into a property on Peachgrove Road, Hamilton (whose occupants were unknown to them), around 7.15 pm on a Saturday in March 2018. Entry was obtained by kicking in the back door, damaging it in the process. They took a number of valuable items, having a total value of approximately

$6,000. They loaded them into their car, which was waiting outside. The police apprehended them as they were leaving. Mr Walker tried to escape, and resisted being captured.

District Court decision

[4]                   Judge Collin began by noting the impact that the offending had had on the victims. They were not at home at the time as they were attending to a family tragedy. The victim impact statement records the crime as a “real kick in the stomach” having regard to this particular circumstance.

[5]                   The Judge identified the aggravating feature of the offending as being that it involved a domestic dwelling by night (when the risk of confrontation is well

1      Walker v Police [2018] NZDC 11005.

2      Crimes Act 1961, s 231, maximum sentence 10 years’ imprisonment; Summary Offences Act 1981, s 23(a), maximum penalty 3 months’ imprisonment or a fine not exceeding $2,000.

3      Criminal Procedure Act 2011, s 248(2).

recognised). His decision also records the fact that the items taken (electronic goods) had “considerable value” and that damage was caused to the home as a result of this forced entry. He adopted a starting point of two years’ imprisonment.

[6]As to aggravating and mitigating features of the offender:

(a)The Judge did not consider there were any mitigating factors, besides the guilty plea, in respect of which the Judge regarded Mr Walker as having had “no” choice, given he was caught “red-handed”.

(b)He noted the contents of the pre-sentence report: Mr Walker had displayed no remorse; consumed methamphetamine and alcohol daily; showed no particular desire to change his life style; that he has 67 previous convictions, nine of which are for burglary, as well as numerous convictions for breaching release conditions and that he was assessed as being at high risk of re-offending, at medium risk of harming others and of having a low ability to comply with release conditions.

[7]                   The Judge considered that Mr Walker’s previous criminal history, coupled with the fact that the index offending occurred shortly after release from prison and in breach of release conditions, justified an uplift of four months, bringing the total to 28 months’ imprisonment. He then allowed a discount for the guilty plea of 25 per cent, bringing the final sentence to 21 months’ imprisonment.

Appeal

[8]                   Mr Walker appeals on the basis the sentence was manifestly excessive, because the starting point was too high.

[9]                   Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.4 In deciding whether to impose a

4      Criminal Procedure Act 2011, s 250(2).

different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.5 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.6 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.7 The focus is on the end result rather than the process by which the sentence was reached.8 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).9 In any other case, the Court must dismiss the appeal.10

Appellant’s submissions

[10]               Mr Walsh submits the starting point identified by Judge Collin was too high. He refers me to two cases, which he says are similar to the present one:

(a)In Newton v Police, the appellant entered a residential home during the day and stole a television and jewellery, to the value of $2,000.11 The sentencing Judge adopted a starting point of two years’ imprisonment. On appeal, Kós J considered that the burglary was purely opportunistic, and there was no risk to the occupants of the house. In such circumstances, Kós J thought an appropriate starting point was 15 months’ imprisonment.

(b)In Marsters v Police, Whata J considered that a global starting point of 16 months was appropriate for burglary, receiving, being unlawfully in a closed yard and possession of an offensive weapon. The offending involved the appellant and an associate breaking into a house and stealing items valued at $700.12

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

7      Tutakangahau v R, at [36].

8 At [36].

9 At [36].

10     Criminal Procedure Act 2011, s 250(3).

11     Newton v Police [2012] NZHC 2829.

12     Marsters v Police [2014] NZHC 3273.

[11]               On the basis of the authorities Mr Walsh submits that a starting point of 12 months would have been appropriate. He acknowledges the Judge’s uplift and the discount for the guilty plea as appropriate.

Respondent’s submissions

[12]               The respondent submits that both the end sentence and the starting point were within range. They further submits that the uplift of four months for breaching release conditions and prior convictions was generous and that discrete uplifts of two months and six months respectively could well have been applied in this respect.

Discussion

Start point

[13]               In assessing the appellant’s submission, this Court’s own starting point is the Court of Appeal’s observation in Arahanga v R that for low level burglaries of a dwelling-house a starting point in the region of 18–30 months is often appropriate.13

[14]               I do not accept the appellant’s submission that this case is closely analogous to Marsters and Newton;14 I consider Mr Walker’s offending to be more serious. Newton involved breaking and entering during the day (where there is less of a risk of confrontation with occupants) and without any notable premeditation. In the present case the offending occurred by night and was clearly premeditated. It is also more serious than that in Marsters, where both the level of premeditation and the value of items stolen was appreciably less. Although in this case the stolen goods were recovered, that is only because Mr Walker was caught red-handed. Little credit can be given for that.

[15]               I consider this case in fact closer to two others, Dixon v Police and Dickerson v Police.15

13     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

14     Marsters v Police [2014] NZHC 3273; Newton v Police [2012] NZHC 2829.

15     Dixon v Police [2013] NZHC 1469; Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010.

(a)In Dixon, the appellants committed two burglaries in the afternoon, on different days. The offending involved forced entry, but the value of the goods taken was low. Cooper J considered a starting point of 18 months for the more serious of the two burglaries would have been appropriate, with an uplift of four months for the other.16

(b)In Dickerson, the appellant broke into a home during the day and took items worth $14,000.17 There was no confrontation, and he did not cause notable damage to the property. The items did not have any particular sentimental value. Simon France J considered that 18 months was an available starting point.

[16]               I also note Regan v Police where Nation J upheld a starting point of three years’ imprisonment in respect of a domestic burglary by night resulting in the theft of valuable electronic equipment but I note that the District Court Judge’s “starting point” in fact included aggravating features relating to Mr Regan personally.18

[17]               Although counsel have referred to other cases I do not consider it necessary to address them in detail.19

[18]               Having regard to all these authorities and the Court of Appeal’s guidance, I consider a starting point in the order of 20–22 months’ imprisonment would have been more appropriate. The offending involved a domestic dwelling where, having regard to the time when it occurred, a risk of confrontation undoubtedly arose. Moreover, it was premediated, involved damage to the property and the value of the items taken was substantial. The 24-month starting point adopted by the Judge was higher than that indicated by comparable cases.

[19]               But I also accept the respondent’s submission that the uplifts imposed by the Judge were significantly lower than they could have been. In particular, the nine

16 At [16].

17     Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010.

18     Regan v Police [2016] NZHC 161.

19     These include Hale v Police [2012] NZHC 1243; McFall v Police [2015] NZHC 2095; and

Stepanicic v R [2015] NZCA 211.

previous convictions for burglary could have themselves justified an uplift in the order of six to eight months while the uplift for breaching release conditions could comfortably have been in the vicinity of two months.20 Moreover, the 25 per cent discount for guilty plea was, in the context of the strength of the respondent’s case, generous.

[20]               As I have indicated, on a sentence appeal the focus is on the end result. Appellants cannot cherry-pick some elements while ignoring others. The end result of 21 months’ imprisonment was, in my view, comfortably within range having regard to the aggravating features of offending and offender. Although the starting point was, in my view, too high, that was more than compensated for by the generous allowances I have indicated.

[21]For these reasons, I do not consider the end sentence was manifestly excessive.

Result

[22]I dismiss the appeal.

Muir J

20     See Regan v Police [2016] NZHC 161; Skipper v R [2011] NZCA 250 at [27]; and R v Columbus

[2018] NZCA 192 at [20].