Walker v R - [2010] NZCA 534

IN THE COURT OF APPEAL OF NEW ZEALAND
CA336/2010
[2010] NZCA 534
BETWEENWERUMA MOHI WALKER

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 November 2010

Court:Glazebrook, Chisholm and Miller JJ
Counsel:K Clews for Appellant

T Singh for Respondent

Judgment:19 November 2010 at 3pm

JUDGMENT OF THE COURT

A            An extension of time to appeal is granted.
B            The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]        Mr Walker entered a guilty plea on the morning of trial to one count of aggravated robbery and one count of unlawful detention (kidnapping). On 26 March 2010, he was sentenced to nine years imprisonment, with a minimum period of imprisonment of six years.
[2]        Mr Walker seeks to appeal against his sentence out of time, on the basis that it is manifestly excessive because the Judge failed to give a 20 per cent discount for his guilty plea, did not give credit for his remorse and gave too much weight to the “home invasion” aspect of the offending.
[3]        The appeal in this case was filed some 33 days out of time. The explanation for the delay was that Mr Walker unsuccessfully sought to instruct new counsel during this time period. The Crown does not oppose the granting of an extension of time, given the circumstances. An extension of time to appeal is therefore granted.
Background
[4]        At approximately 2am on 16 January 2009, Mr Walker and three others caught a taxi. During the taxi trip, Mr Walker advised his associates that they were going to an address to “do over” a person who lived there.
[5]        The group of four arrived at the address of the 61 year old victim and Mr Walker and his male associate knocked on the back door of the victim’s house. When the victim opened the door, Mr Walker and his associate forced their way inside the house and began to demand money from the victim. The two other female associates remained outside the property.
[6]        Both Mr Walker and his associate were wearing scarves that covered their faces.
[7]        Mr Walker and his associate forced the victim into the lounge of the house and continued to demand money. They told the two female associates, who were standing outside the back door of the house, to search the victim’s car for his wallet, which they did.
[8]        It was subsequently discovered that the victim’s wallet was on the dining room table. The victim retrieved $70 from it and handed it over. Mr Walker and his associate then forced the victim into his vehicle. They made him drive to an ATM machine and withdraw $800, which was taken by Mr Walker and his associate.
[9]        The victim then drove back to his address. He was taken into the lounge by Mr Walker and his associate and his hands and feet were tied using computer cables. The victim was then threatened, told not to call the police and the telephone wires in the kitchen were cut.

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 R

Details

AGLC: Walker v R [2010] NZCA 534
Case: [2010] NZCA 534
Decision Date: 19 November 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Weruma Mohi Walker, sought an appeal against his sentence for aggravated robbery and unlawful detention, arguing that it was manifestly excessive. The sentencing judge had imposed a nine-year imprisonment term with a six-year minimum period. Walker contended that the sentence was disproportionate due to the judge's failure to apply a 20% discount for his guilty plea, neglecting his remorse for the victim's suicide, and overemphasising the home invasion aspect of the crime. The appeal was lodged 33 days past the statutory deadline, attributed to Walker's unsuccessful attempts to instruct new counsel. The Crown did not oppose the extension of time to appeal given the circumstances, and an extension was granted. However, the appeal was dismissed as the sentence was deemed appropriate and within the judicial discretion.

The legal issues addressed in this case primarily revolved around the appropriate discount for a guilty plea, the consideration of remorse in sentencing, and the weighting of the home invasion aspect of the crime. Walker argued that the sentence was disproportionately harsh due to the court's failure to apply the agreed 20% discount for his early guilty plea, which he claimed was only a two-and-a-half-month shortfall. He also argued that his remorse for the victim's suicide should have warranted a lesser sentence. Additionally, Walker believed the judge placed undue emphasis on the home invasion, adding an excessive three years to the sentence. The court examined these contentions to determine if they warranted a reduction in the sentence or if the sentence was justified under the circumstances.

The Court of Appeal, in its judgment, upheld the sentence imposed by the lower court. It noted that the crime was at the upper end of seriousness, with many aggravating factors present, including planning, disguises, forced entry, and the use of threats and violence. The starting point of ten years was deemed appropriate, and the judge's additional year for Walker's poor criminal history was justified. The court found the two-and-a-half-month shortfall in the guilty plea discount to be minimal, especially given the late plea. Moreover, the court did not consider Walker's remorse for the victim's suicide as a mitigating factor, given his lack of remorse for the crime itself. The overall sentence was deemed to be within the judicial discretion and, in fact, could be seen as lenient.

The appeal was dismissed, and the original sentence of nine years imprisonment with a six-year minimum was upheld. The court concluded that the sentence was proportionate to the severity of the crime and the aggravating factors involved. The Crown Law Office represented the respondent in this case.

Orders