Walsh v Police - [2014] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-16 [2014] NZHC 2365

BETWEEN
MICHAEL PATRICK WALSH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
23 September 2014

(Heard at Wellington by AVL)

Appearances:

A J Heward for appellant
M A O'Donoghue for respondent

Judgment:

26 September 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Michael Walsh, pleaded guilty to one charge of possession of cannabis for supply contrary to s 6 of the Misuse of Drugs Act 1975 and was sentenced by Judge Zohrab to eight months’ imprisonment.1

[2] Mr Walsh now appeals against his sentence on the grounds that the Judge erred by:

(a) not taking s 8(g) of the Sentencing Act 2002 into account when sentencing; and

(b)exhibiting predetermination in sentencing by placing undue weight on a final warning given to Mr Walsh.

[3] Mr Walsh says his sentence should be one of home detention.

1 Police v Walsh DC Nelson CRI-2014-042-001064, 5 August 2014.

Facts

[4] At around 11.50 pm on 17 May 2014 Mr Walsh was driving a vehicle on the Moutere Highway in Motueka. Police stopped the vehicle and, having done so, noticed a smell of cannabis coming from the vehicle. Police searched the vehicle and found a bag of cannabis in the centre console along with 20 zip lock plastic bags and another bag of cannabis in the boot along with a set of digital scales. In total 56 grams of cannabis head material was found.

[5] At the time Mr Walsh declined to comment to the police.

The challenged sentencing decision

[6] In sentencing Mr Walsh, the Judge referred first to the report from Community Probation. That report recorded that Mr Walsh said the cannabis was not his. Given Mr Walsh’s guilty plea, however, the Judge proceeded on the basis that Mr Walsh was guilty of the offending. Mr Walsh does not challenge his conviction.

[7] The Judge noted the relatively positive lifestyle that Mr Walsh had been leading, as recorded in that report. Mr Walsh is in a stable relationship with his long- term partner. They are expecting a child together in November and he has been in fulltime employment as a forestry worker for some time.

[8] In terms of the appropriate starting point, the Judge noted Mr Walsh’s 2012 convictions relating to 13 charges of selling or supplying cannabis, possessing cannabis and possessing needles and also assault on police and obstructing police. On that occasion Mr Walsh had been sentenced by Judge Zohrab to supervision and community work. He had also been given a “final warning” by the Judge.

[9] Judge Zohrab fixed a starting point of imprisonment on the basis that this was serious offending and Mr Walsh had a history of offending in a similar way. The Judge observed that:2

I am not going to involve any double counting, because ordinarily I would not take a start point of a prison sentence without someone’s prior history of commercial offending. I am not bound by the final warning,…

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 Walsh v Police

Details

AGLC: Walsh v Police [2014] NZHC 2365
Case: [2014] NZHC 2365
Decision Date: 26 September 2014

CaseChat Overview and Summary

The case of Walsh v Police involved Michael Walsh, who was sentenced by Judge Zohrab to eight months’ imprisonment for possession of cannabis for supply. Walsh appealed the sentence, arguing that the Judge had erred by not considering section 8(g) of the Sentencing Act 2002 and by giving undue weight to a final warning previously given to Walsh. Walsh submitted that his sentence should have been one of home detention. The appeal was heard in the High Court of New Zealand, Nelson Registry, and was ultimately dismissed.

The legal issues before the court were whether the sentencing judge erred in not considering section 8(g) of the Sentencing Act 2002 and in giving undue weight to a final warning when sentencing Walsh. Section 8(g) of the Sentencing Act 2002 provides that the least restrictive outcome that is appropriate should be imposed. Walsh argued that the final warning given by the judge should not have been considered when determining his sentence, as it has no statutory basis and is not part of the permanent record of the court.

The court found that there was no error in the Judge’s assessment that a term of imprisonment was the appropriate sentence. The court held that it was open to the Judge to consider Walsh’s previous record and his response to previous attempts to deter him from further offending when deciding on the appropriate sentence. The court also noted that the Judge expressly stated that he was not bound by the final warning and that it was appropriate for the Judge to consider the final warning in conjunction with Walsh’s previous record when determining the sentence.

In conclusion, the court found that there was no error in the Judge’s assessment that a term of imprisonment was the appropriate sentence for Walsh. The appeal was dismissed, and Walsh’s sentence of eight months’ imprisonment was upheld.

Orders