[1] Mr Walker appeals against his sentence of three years and nine months’ imprisonment and his disqualification from driving for seven years following conviction on charges of driving with excess blood alcohol (EBA) causing death,1
two charges of driving with excess blood alcohol causing injury2 and dangerous

driving.3

[2] Mr Walker was sentenced by Judge Mackintosh on 5 April 2016.4

[3] Mr Walker appeals against the sentence as being manifestly excessive on the following grounds:

(a) the starting point was too high;

1      Land Transport Act 1998, s 61(1)(b)
2      Section 61(1)(b).
3      Section 35(1)(b).
4      R v Walker [2016] NZDC 5624.

(b) the uplift for Mr Walker’s previous conviction was excessive;

(c) there ought to have been a discount for Mr Walker’s remorse; and

(d) the period of disqualification ought to have been indefinite.

The facts

[4] On 8 August 2015 Mr Walker was driving his car with three others: Jayden French, Stephen Palmer and Jesse Uncles. At approximately 11.30 pm the car was observed to accelerate hard in an attempt to lose traction and nearly collided with the concrete kerb. The car then passed a speed camera travelling well over the 50 kph speed limit. The manner of driving at that time was described as accelerating full speed, and as jerky and reckless. In an 80 kph area the car was observed to be travelling at an estimated 120 kph. Mr Walker then lost control at a moderate right- hand bend and the car slid off the road, down an embankment before colliding with a solid wood strainer post and a line of trees.

[5] The consequences of the accident were horrific: Jesse Uncles died after sustaining significant head injuries, Jayden French suffered life threatening and long-term injuries and Stephen Palmer suffered a fractured vertebra along with other injuries. Mr Walker suffered only a minor “knock to the head”.

[6] Following the accident Mr Walker’s blood alcohol reading revealed he had

218 mg of alcohol per 100 ml of blood, which is more than four times the then legal limit of 50 mg per 100 ml. Mr Walker admitted to drinking approximately seven cans of beer as well as further beer from a beer bong and some Kahlua.

The sentencing decision

[7] Judge Mackintosh recounted the facts of the offending and referred to the victim impact statements, noting that they made “quite harrowing reading”.

[8] The Judge considered a range of Court of Appeal authorities in establishing the aggravating features of the offending.5 She identified that the offending was aggravated by the fact that death and serious injury were caused, the level of intoxication of Mr Walker and the reckless nature of his driving leading up to the…

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 [2016] NZHC 1963
Case: [2016] NZHC 1963
Decision Date: 22 August 2016

CaseChat Overview and Summary

Tyler James Walker appeals against his sentence of three years and nine months' imprisonment and a seven-year disqualification from driving, following his conviction on charges of driving with excess blood alcohol (EBA) causing death, two charges of driving with EBA causing injury, and dangerous driving. The appeal focuses on the starting point of the sentence, the uplift for previous convictions, the discount for remorse, and the disqualification period. The Crown submits that the starting point was appropriate, given the gravity of the offence, and that the uplift for previous convictions and the discount for remorse were correctly applied. The Crown also argues that the seven-year disqualification was consistent with the principles of the Sentencing Act, the purpose of the amendments to the Land Transport Act, and the Court of Appeal's view that it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible. The appellant argues that the starting point was too high, the uplift for previous convictions was excessive, there ought to have been a discount for remorse, and the period of disqualification ought to have been indefinite. The Court considers the aggravating factors in the case, including the level of intoxication, the reckless nature of the driving, and the fact that death and serious injury were caused. The Court finds that the starting point of five years was consistent with the sentencing levels in relevant cases and reflects the gravity of the offending. The Court also finds that the uplift for the previous conviction was appropriate and that the discount for remorse was correctly applied. However, the Court finds that there has been an error in imposing disqualification, which needs correction. The Court finds that the Court can impose an indefinite period of disqualification, together with a finite disqualification on an analysis of the relevant provisions. The Court allows the appeal, but only in respect of an additional disqualification order under s 65(2) of the Land Transport Act 1998. The appellant is disqualified from holding or obtaining a driver's licence under s 65(2). The appellant is ordered to attend an assessment centre and remains disqualified from holding or obtaining a driver's licence until the New Zealand Transport Agency removes the disqualification under s 100 of the Land Transport Act 1998. In all other respects, the sentence imposed by the District Court on 5 April 2016 is upheld, including the order of disqualification for a period of seven years.

Orders