Walker v Police HC Wellington Cri-2007-485-74

[2007] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-000074

BETWEEN  CHRISTOPHER JOHN WALKER Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         23 August 2007

Counsel:        C J Milnes for Appellant

P K Feltham for Respondent

Judgment:      29 August 2007

JUDGMENT OF WILD J

Introduction

[1]      On the ground that it is manifestly excessive, Mr Walker appeals an effective total sentence of 2 years 7 months imprisonment imposed by Judge Radford on 17

July.   Mr Walker alleges also that the Judge failed to look at the totality of his offending, and failed to take account of his personal circumstances.   Mr Walker is now a father, and Ms Milnes made a strong submission that a sentence of 18 months imprisonment  –  certainly  one  under  2  years  –  was  the  appropriate  sentence. Assuming leave, and that home detention was granted, Mr Walker could serve his sentence at home with his partner and their child.   And it is that prospect which I think is driving this appeal.

[2]      Details of the sentences imposed by the Judge are:

WALKER V NEW ZEALAND POLICE HC WN CRI-2007-485-000074  29 August 2007

Offence  Section  Penalty Imposed              Maximum Penalty

Burglary (party)       Crimes  Act  s  231(a)

and s 66

12 months imprisonment      10 years imprisonment

Gets into vehicle      Crimes Act s 226(2)      12  months  imprisonment, cumulative

2 years imprisonment

Driving with  EBA (1st or 2nd offence)

Land  Transport  Act  s

56(1)   and   (3)    and

56(4)

6 months imprisonment, cumulative; 6 months disqualification

3 months imprisonment or

$4,500 fine.   Mandatory disqualification for 6 months or more.

Theft (x3)               Crimes Act s 219 and

223(d)

1 month’s imprisonment each, concurrent with each other but cumulative on other terms.

3 months imprisonment.

Breach             of supervision

Sentencing Act s 70(a)    1  month’s  imprisonment, concurrent with theft sentence

3  months  imprisonment  /

$1,000 fine

[3]      As is apparent from this table, the Judge imposed a sentence of imprisonment for the EBA offence greater than the applicable maximum.   On the other hand, he disqualified Mr Walker for only 6 months when a third or subsequent EBA offence carries a minimum disqualification of more than 12 months.  The Judge appears to have treated the EBA as a third or subsequent offence, consistent with Mr Walker’s criminal record.  But, as Ms Milnes pointed out, the information was framed as if the offence  was  a  first  or  second  one.    And  Mr  Walker  pleaded  guilty,  and  was convicted, on that basis.  The information was never amended.  I accept Ms Milnes’ submission that the Court’s power to amend the information ends with the entry of a conviction:   s43 Summary Proceedings Act 1957.   Accordingly, this appeal must succeed, at  least  in relation to the sentence imposed for the EBA offence.    Ms Feltham conceded that.   That leaves the question of whether the sentence under appeal is excessive in any other respect(s).

The facts

Burglary

[4]      In the early hours of 10 February 2006 a group of young men including Mr Walker broke into the premises of PSS Motorcycles in Lower Hutt.   They loaded several motorcycles in their van and left.  Mr Walker admitted to the Police that he had off-loaded one of the motorcycles at the home of a friend.  Although he accepted

Mr  Walker  was  fully  aware  of the  burglary plan,  the  Judge’s  sentencing  notes suggest he accepted that Mr Walker’s role was primarily that of a lookout.

Gets into vehicle

[5]      Last New Year’s Day Mr Walker and another person took a car without the owner’s permission.  While the other person was driving the car away, Mr Walker mentioned that he would like the stereo, and it was later removed from the car and delivered to him.

Thefts

[6] The third of the theft charges is based on Mr Walker’s theft of the car stereo, outlined in paragraph [5]. The other two thefts were shoplifting by Mr Walker on two successive days, in each case of packets of razor blades from a supermarket.

EBA

[7]      Mr  Walker  was  apprehended  in  the  early  hours  of  the  morning  driving through Lower  Hutt  with a  reading  of 660/400  mg/l.    He  was  cooperative  and expressed surprise that he was over the limit.

Breach of supervision

[8]      Mr Walker failed to report to his probation officer.   He explained that he could not report because he had moved from Porirua to Lower Hutt and could not drive.

District Court sentencing

[9]      The Judge viewed the burglary as the most serious charge, and as a serious offence of its type.  He regarded the fact that it was planned and premeditated as an

aggravating feature.  He also viewed the charge of getting into a vehicle as serious, noting that Mr Walker and the other person had gone to the address from which they took the car with the intention of taking it.   The theft of the car stereo  was an aggravating feature, as well as a separate offence.

[10]     The Judge noted the need that he step back and look at the offending overall, when selecting a starting point.  Having done that, he took a starting point of 2 years and 7 months imprisonment.   He then factored in the aggravating factors of Mr Walker’s considerable criminal record, mentioned that  some of the offences had been committed while Mr Walker was subject to Court proceedings in respect of further offending, and noted that the EBA offence came after Mr Walker had been given a final warning.

[11] The Judge accepted that Mr Walker was entitled to a discount for his guilty pleas, but took the view that the aggravating factors cancelled out that discount, bringing him back to the 2 year 7 month sentence he had started with, made up as outlined in [2].

Total effective sentence manifestly excessive

[12]     Ms Milnes began by accepting that the sentence imposed for the burglary was within range.   It certainly was, and I am unsympathetic to Ms Milnes’ attempt to minimise Mr Walker’s involvement on the basis that he did not enter PSS Motorcycles’ premises, but was “only” the lookout who also helped load the stolen motorcycles into the van.  This was a joint enterprise by all the offenders involved, Mr Walker’s role being no less vital than that of the others.

[13]     The challenge on appeal was directed more to the way in which the Judge had cumulated the sentences he imposed for the other offences.  Again, Ms Milnes sought to minimise Mr Walker’s involvement in the getting into the vehicle charge. She pointed out that Mr Walker was not  charged with theft  of the vehicle, and contended  that  Mr  Walker  was  simply  “joy riding”.    I  do  not  accept  that  that description accurately reflects Mr Walker’s culpability, particularly when he took the opportunity to steal the stereo from the vehicle.

[14]     Turning to the EBA, Ms Milnes again sought to minimise this.  Certainly, a reading of 660/400 does not make this offence the most serious of its kind, but the Judge was perfectly entitled to factor in that Mr Walker was under a final warning about drink driving.

[15]     Ms Milnes submitted that the Judge had only been able to get to a 2 year 7 month sentence  by double-counting  aggravating  features; once  in respect  of the offending and again in respect of Mr Walker as the offender.  But the only instance of this she was able to identify was the final warning relevant to the EBA, which the Judge mentioned both in [16] of his notes when dealing with the offence, and again in [17] when dealing with the offender.

Appellant’s personal circumstances

[16]     Ms Milnes portrayed Mr Walker as a young man who had turned the corner in terms of criminal offending.  She submitted:

The birth of his daughter (on 14 April 2007) has been an eye opener for Mr Walker in that he realised that he cannot continue with the criminal lifestyle of his past years.  Mr Walker, while on bail, focused his efforts on earning an income and caring for his partner and child.

[17]     Expanding on this, Ms Milnes pointed out that Mr Walker, now 23 (d.o.b.

25 March 1984), had committed the burglary in February 2006, when he was 21.  He was 22 when he committed the other offences, which span the period October 2006- January 2007.  She emphasised that Mr Walker had cooperated fully with the Police, leading to the recovery of another motorcycle taken in the burglary.

[18]     The other point Ms Milnes emphasised was that  Mr Walker  is “now” in permanent employment.

[19]     This optimistic scenario is not consistent with the reports that Judge Radford had when he sentenced Mr Walker.  The Judge described the probation report as “a sad business”.  It stated that Mr Walker failed to show any remorse for his offending, commenting “I just didn’t think I would get caught”.  It assessed him as at a high risk of re-offending, and commented that his expressed level of motivation “must be

viewed with some caution”.  The Judge pointed out that Mr Walker had not taken advantage of the psychological counselling made available to him during his most recent  sentence of supervision, and described  his non-compliance with his  most recent community based sentences as “blatant”.   For all those reasons the report writer was unable to recommend a community based sentence, and recommended imprisonment,  plus  a  sentence  of reparation  with  payments  beginning  upon  Mr Walker’s release.

[20]     A psychologist’s report gave some further detail about Mr Walker’s personal circumstances.   He had been in a relationship with his partner (the mother of the child) for the past two years (to July 2007) “but only seriously for about a year”. This report also mentioned that Mr Walker had been employed with Toyota Commercial Dismantlers “for the past four years”, in other words right through the period of the offending for which he was being sentenced.

Decision

[21]     Ms Milnes did not appear for Mr Walker upon sentence.  Had she appeared, and portrayed the position to Judge Radford as she did to me, the Judge might have found it difficult indeed to reconcile with the reports he had.  I do.  Whilst the birth of the child is post-offending, Mr Walker’s relationship with the child’s mother is not, and his employment certainly is not.  Further, some two months after Mr Walker became a father, the probation officer was still reporting that he showed no remorse for his offending, remained at high risk of re-offending, and was only doubtfully motivated to change.

[22]     Thus, while I do need to adjust the total sentence downward, for the reason mentioned in [3], I am far from persuaded that the Judge imposed a total effective sentence that was manifestly excessive in all the circumstances, particularly those personal to Mr Walker.   As a cross-check, I have looked at sentences for similar combinations of offending, in particular the following three:

a)       In Wathey v Police HC ROT (CRI-2006-463-118; CRI-2006-463-119; CRI-2006-463-120; CRI-2007-463-5) 20 March 2007, the appellant

was  sentenced  to  a  total  of  2  years  6  months  imprisonment  on charges  of  burglary,  unlawfully  taking  a  motor  vehicle,  receiving stolen property and driving while disqualified. W and a co-offender broke into hospital staff accommodation and stole a CD and cellphone from one room, and entered 2 other rooms by force but took nothing. W  had  previously  stolen  a  car,  and  been  found  in  possession  of another stolen car. The Judge considered W to be a recidivist burglar and adopted a three year six month starting point before allowing a one year deduction for a guilty plea and  W's young age (19). On appeal it was held that in burglary cases the starting point should take into account recidivism and aggravating features, which in this case included offending while still subject to sentence. The starting point adopted by the Judge was appropriate and the reduction for mitigating factors within range. The appeal was dismissed.

b)       In R v Subritzky [2007] NZCA 75, S appealed against a 3 year 6 month sentence of imprisonment for burglary, unlawfully taking a motor vehicle, theft, and two charges of driving while disqualified. S burgled  a  domestic  property,  taking   items   including  Christmas presents. A week later, he drove off without paying for petrol, while disqualified, and was later seen driving a converted car. S had 102 previous convictions, and was subject to a custodial sentence at the time of the offending. The Court considered that the sentencing Judge was right to take the view that protection of the public was a prime consideration, and that the distinct offences of driving while disqualified   needed   to   be   addressed.   Nothing   in   the   sentence suggested it was manifestly excessive.

c)       Te Huna v Police HC WAN CRI-2006-483-1 21 February 2006: T was sentenced to 2 years imprisonment for burglary, car conversion, unlawfully getting into motor vehicle and theft. While on bail, T had befriended  an  elderly  dementia  sufferer  then  burgled  his  house, stealing $750. The theft and conversion charges also related to elderly acquaintances.  T  had  numerous  convictions,  but  had  never  been

sentenced to a term of imprisonment. A starting point of three years was taken, and a reduction of one year allowed for mitigating factors of a guilty plea, T's young age and that she had never served sentence

of imprisonment. The sentence was upheld on appeal.

Result

[23]     The appeal is allowed, the sentence of 6 months imprisonment imposed for the EBA offence is quashed.  A sentence of 2 months imprisonment, cumulative, is substituted.   The 6 months disqualification imposed by the Judge (but somewhat academic in view of Mr Walker’s imprisonment) remains unchanged.

[24]     In the result, the total effective sentence is 2 years 3 months imprisonment.

Solicitors:

Crown Solicitor, Wellington for Respondent