Walter v Police - [2018] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-431

[2018] NZHC 192

BETWEEN
MICHAEL WALTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 February 2018

Appearances:

N Chisnall for Appellant H Max for Respondent

Judgment:

19 February 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

WALTER v NEW ZEALAND POLICE [2018] NZHC 192 [19 February 2018]

[1] Mr Walter pleaded guilty in the District Court to charges of importing the Class B drug MDMA, commonly known as ecstasy, and importing the Class C controlled drug ketamine. On 27 October 2017, Judge Wharepouri sentenced Mr Walter to five years six months and two weeks imprisonment on both charges.1

[2] Mr Walter appeals against sentence on the basis that the Judge applied an overall starting point that was too high, and failed to provide him with adequate discounts to reflect mitigating factors.

The facts

[3] Mr Walter pleaded guilty after having received a sentence indication that he declined. The summary of facts on which he was sentenced states that on 2 February 2017 he arrived at Auckland International Airport on a flight from Melbourne, Australia. He had earlier travelled from Germany via Abu Dhabi to Melbourne.

[4] When Mr Walter arrived in Auckland, he was subject to a baggage check. The customs officer who examined his suitcase noticed that it appeared to still be heavy even after the contents had been removed. He then subjected the suitcase to an x-ray examination. This revealed a hidden compartment within the base of the suitcase in which four vacuum sealed bags had been placed. A sample taken from one of these immediately tested positive for a controlled substance. It was later determined that three of the sealed bags contained MDMA, and the remaining bag contained ketamine.

[5] The MDMA had a purity of between 77 and 82 per cent. This meant that Mr Walter had imported between 1.5 and 1.6 kilograms of pure MDMA having a street value of between $550,000 and $672,000. The ketamine was found to have a purity level of approximately 70 per cent. This meant Mr Walter had imported 250 grams of pure ketamine, having a street value of $150 per gram. It is now agreed that the street value of the ketamine was $37,500. In this respect both counsel acknowledge that the

1 R v Walter [2017] NZDC 24380.

summary of facts contained an error, because it recorded the street value of the ketamine as being $54,150.

The sentence

[6] The Judge took a starting point of seven years imprisonment on the MDMA charge. He then added an uplift of 12 months to reflect the charge relating to the importation of ketamine. From the end starting point of eight years imprisonment he made an allowance of three months to reflect Mr Walter’s previous good character, two months for efforts he had made whilst on remand to rehabilitate himself and two months to reflect the fact that he will…

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 Walter v Police

Details

AGLC: Walter v Police [2018] NZHC 192
Case: [2018] NZHC 192
Decision Date: 19 February 2018

CaseChat Overview and Summary

The case of Walter v Police, heard in the High Court of New Zealand, involved Michael Walter, who was appealing the sentence imposed on him by the District Court for importing the Class B drug MDMA and the Class C drug ketamine. The District Court had sentenced Walter to five years, six months, and two weeks of imprisonment on both charges. Walter argued that the starting point for his sentence was too high and that the Judge did not adequately apply discounts for mitigating factors.

The court considered the arguments presented by Walter's counsel, N Chisnall, and the Crown's counsel, H Max. The court examined the starting point for Walter's sentence and the uplift applied to reflect the ketamine charge. The court found that the Judge's decision to add a 12-month uplift for the ketamine charge was not outside the range of acceptable sentencing, but the error in calculating the street value of the ketamine might have influenced the decision. Therefore, the court decided to halve the uplift to six months, resulting in a new starting point of seven years and six months.

The court also reviewed the discounts applied for mitigating factors, such as Walter's previous good character and the fact that he would serve his sentence in a foreign prison. The court concluded that the Judge had not erred in applying these discounts and found no reason to increase the discount for serving a sentence in a foreign prison. After recalculating the sentence, the court arrived at a new sentence of five years and two months for the MDMA charge and five months for the ketamine charge, to be served concurrently.

In conclusion, the High Court quashed the sentences imposed by the District Court and imposed a new sentence of five years and two months on the charge of importing MDMA and five months on the charge of importing ketamine, to be served concurrently.

Orders