Walters v Police - [2021] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000154

[2021] NZHC 63

BETWEEN
SHANE WILLIAM WALTERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 February 2020

Appearances:

E Nicol for Appellant

P Brown for Respondent

Judgment:

3 February 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 3 February 2021 at 2 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WALTERS v NZ POLICE [2021] NZHC 63 [3 February 2021]

Introduction

[1] The appellant, Mr Walters was charged with, and pleaded guilty to, charges of cultivation of cannabis1 and possession of drug utensils.2 He was sentenced by Judge Couch in the District Court to 90 hours’ community work.3 He appeals this sentence on the ground that it was manifestly excessive and he maintains the penalty should have been a fine.

Facts

[2] On 19 August 2020 Police attended an unrelated incident involving a vehicle on Innes Road, Christchurch. Police spoke to Mr Walters and three other occupants at the address. While speaking with them a strong scent of cannabis was detected.

[3] Police invoked a warrantless search of the property and the occupants for drugs. While searching the property they located a growing tent containing 11 juvenile cannabis plants ranging in size4 and five cannabis seedling plants. Police seized several utensils used for cannabis consumption and what is described as a cannabis grinder.

District Court decision

[4] Mr Walters’ counsel before the District Court submitted a fine was an appropriate penalty. In response to that submission the notes of evidence record that Judge Couch stated:

It won’t be a fine… I think it is beyond the scope of that. It’s certainly towards the lower end of the scale, but we’re dealing with a charge with a maximum penalty of eight years’ imprisonment. Even the lower end of the scale is, in most cases, past a fine.

1      Misuse of Drugs Act 1975, s 9(1).
2      Sections 13(1)(a) and 13(3).
3      Police v Walters [2020] NZDC 24831.
4      Ranging from 680mm to 800mm.

[5] The notes of evidence record the Judge went on to enquire as to whether Mr Walters had the ability to pay a fine. He was then convicted and sentenced as follows:5
[1] Mr Walters, on these two charges you will be convicted. You are sentenced to 90 hours’ community work.

Principles on appeal

[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified…

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 Walters v Police

Details

AGLC: Walters v Police [2021] NZHC 63
Case: [2021] NZHC 63
Decision Date: 3 February 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against sentence in the case of Walters v Police. Shane William Walters had been charged with and pleaded guilty to cultivating cannabis and possessing drug utensils. He was sentenced to 90 hours of community work. Walters appealed, arguing that the sentence was manifestly excessive and that he should have been fined instead. The appeal was allowed, and the sentence was quashed. A fine of $1,700 was imposed in its place.

The legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. The Court held that the District Court Judge had not adequately considered the appellant's ability to pay a fine. The Court found that the appellant had a jobseeker benefit and could pay a fine by instalments. The Court held that the sentence of 90 hours of community work was manifestly excessive and did not achieve the purposes of denunciation and deterrence. A fine was the least restrictive outcome appropriate in the circumstances. The appeal was allowed, and a fine of $1,700 was imposed. If the appellant was unable to pay the fine in full immediately, it was to be paid by instalments of $20 per week.

Orders