Walker v The Queen - [2016] NZHC 2647

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-35 [2016] NZHC 2647

BETWEEN
ROBERT JOHN WALKER

Appellant

AND

THE QUEEN Respondent

Hearing(AVL): 1 November 2016

Counsel:

M Sceats and C Scott for Appellant
F G Biggs for Respondent

Judgment:

7 November 2016

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Walker pleaded guilty to three charges:

(a) selling cannabis (representative, five occasions);

(b) possession of cannabis for the purposes of sale; and

(c) supply/offer to supply methamphetamine (representative, eight occasions).

[2] Judge Rea in the District Court at Gisborne sentenced him to two years and

three months’ imprisonment.1

[3] Mr Walker appeals his sentence on the grounds that it was manifestly excessive. In particular, he submits:

1 R v Walker [2016] NZDC 19660.

WALKER v THE QUEEN [2016] NZHC 2647 [7 November 2016]

(a) the starting point for the overall offending was too high, because of a lack of regard to the totality principle;

(b)the Judge failed to give appropriate credit for time spent on EM and restrictive bail; and

(c) the Judge was wrong to disregard Mr Walker’s efforts at rehabilitation and his family circumstances.

Facts

[4] Mr Walker committed the cannabis offending together with his partner, Ms Haturini.2 They were subjects in a police undercover operation relating to cannabis and methamphetamine, called Operation Province. The operation started in July 2015 and ended as regards Mr Walker and Ms Haturini when their home was raided on 4 April 2016.

Methamphetamine

[5] Mr Walker alone sold methamphetamine from their address. On four separate occasions he sold a 0.1 gram bag of methamphetamine to an undercover officer from his house. On one occasion, he told an officer that he had larger amounts (quarters or grams) available.

[6] On 18 December 2015, an officer asked him for a quarter. Mr Walker sent him out to the garage where his associate was. That associate did not have any quarters, but sold the officer two point bags.

[7] On 7 March 2016, an officer asked Mr Walker for a quarter. He directed the officer to the garage, where an associate sold him a 0.2 gram bag.

[8] On 21 March 2016, an officer asked Mr Walker for a gram. Mr Walker told an associate to take the officer to a different address, but no purchase was made.

2 Both of the appellant’s cannabis convictions were charged jointly with Ms Haturini. She also had another charge alone for selling cannabis.

[9] On 22 March, an officer asked him for a quarter. Mr Walker said he was out of stock but the officer should come back later. He said he could get the officer a gram for $650.

Cannabis

[10] In September 2015, the couple sold five tinnies to undercover officers for $20 each. This was on five separate occasions: Ms Haturini sold three, and Mr Walker sold two (though they are still jointly charged on all counts). There were other tinnies available each time.

[11] On 4 April 2016, when the police raided the house,…

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 The Queen

Details

AGLC: Walker v The Queen [2016] NZHC 2647
Case: [2016] NZHC 2647
Decision Date: 7 November 2016

CaseChat Overview and Summary

Robert John Walker appealed against his sentence for selling cannabis and methamphetamine, jointly with his partner Ms Haturini, arguing that it was manifestly excessive. Walker was sentenced to two years and three months’ imprisonment by Judge Rea in the District Court at Gisborne. Walker argued that the starting point for his overall offending was too high, the Judge failed to give appropriate credit for time spent on electronic monitoring (EM) and restrictive bail, and the Judge was wrong to disregard Walker’s efforts at rehabilitation and his family circumstances. The Crown argued that the one year uplift for the cannabis offending was not excessive and the Judge was entitled to refuse personal mitigating discounts. The High Court allowed the appeal and substituted a sentence of 22 months’ imprisonment. The Court found that the uplift for the cannabis offending was too much even seen in context, there was a small discount for EM bail but how much was only able to be inferred, and there is a place for personal mitigating factors in commercial drug offending. The Court concluded that a modest discount for these efforts was appropriate.

Walker v The Queen [2016] NZHC 2647 involved a challenge to the sentence imposed on Robert John Walker for selling cannabis and methamphetamine. The District Court Judge sentenced Walker to two years and three months’ imprisonment, but Walker appealed on the grounds that the sentence was manifestly excessive. The High Court allowed the appeal and substituted a sentence of 22 months’ imprisonment. The Court found that the uplift for the cannabis offending was too much even seen in context, there was a small discount for EM bail but how much was only able to be inferred, and there is a place for personal mitigating factors in commercial drug offending. The Court concluded that a modest discount for these efforts was appropriate.

Orders