Walters v Police - [2014] NZHC 2219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-55 [2014] NZHC 2219

BETWEEN
MICHAEL STEWART KAMURA

WALTERS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2014

Appearances:

C Fletcher for Appellant
A Williams and C Martin for Respondent

Judgment:

12 September 2014

JUDGMENT OF MANDER J

[1] Mr Walters appeals his sentence of 4 years imprisonment imposed on two charges of driving while disqualified and a charge of driving with excess breath alcohol, in the aggravated form, being third or subsequent offences of their type. Mr Walters pleaded guilty at his first appearance to these charges. It is submitted on behalf of Mr Walters that the sentencing Judge erred in the following ways:

(a) A failure to afford the appellant a full 25% credit for his early guilty pleas.

(b)Insufficient recognition of the mitigating factors relating to the offending.

(c) Insufficient recognition of personal mitigating factors.

(d)The ultimate sentence of 4 years imprisonment breached the totality principle and was manifestly excessive.

WALTERS v NEW ZEALAND POLICE [2014] NZHC 2219 [12 September 2014]

Credit for guilty plea

[2] Judge O'Driscoll took a starting point of 20 months imprisonment for each charge which he reduced by 4 months to acknowledge Mr Walters guilty plea. This equates to a discount of 20%. It is submitted on behalf of Mr Walters that he was entitled to a full 25% discount. Reliance is placed on the Supreme Court decision of Hessell v R.1

[3] As observed by the Crown, Hessell v R is not authority for an entitlement to a

25% discount for an early guilty plea. It is not in dispute that Mr Walters entered his plea at an early stage in the proceeding and at the earliest opportunity. The fact remains however that the extension of credit for such a plea is a matter for the sentencing Judge in the exercise of the Judge’s evaluation of the full circumstances of the individual case. Judge O'Driscoll observed, while entitled to credit for the plea, Mr Walters really had no defence available to him to these charges, and the sentencing Court was entitled in its examination of all the relevant circumstances to
identify 20% as the extent of the true mitigatory effect of the plea.2

Mitigating factors of the offending

[4] Mr Walters argues that his last drink-drive charge was some seven years ago. He relies upon the Court of Appeal decision of R v Fair,3 where the appellant in that case had 14 previous drink-driving convictions and 12 previous convictions for disqualified driving. His last conviction for drink-driving was seven years previous, which the Court observed was a “far from negligible” break in his offending.4 That factor was considered to take the offence out of the most serious category, lying instead “near to the most serious of cases”.5 The Court of Appeal considered that a starting point of 20 months imprisonment for each offence was the most that could be justified, and a concurrent sentence of 18 months imprisonment was…

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 [2014] NZHC 2219
Case: [2014] NZHC 2219
Decision Date: 12 September 2014

CaseChat Overview and Summary

In this case, the appellant, Mr Michael Stewart Kamura Walters, appealed his sentence of 4 years imprisonment for two charges of driving while disqualified and a charge of driving with excess breath alcohol. Mr Walters pleaded guilty at his first appearance to these charges. The appeal was heard in the High Court of New Zealand at Christchurch. The key issues before the court were whether the sentencing judge erred in not affording a full 25% credit for the early guilty pleas, not sufficiently recognising mitigating factors, not adequately considering personal mitigating factors, and whether the ultimate sentence of 4 years imprisonment was manifestly excessive. The court found that the sentencing judge was within his discretion to determine the extent of the discount for an early guilty plea and that the mitigating factors were adequately considered. The court concluded that the sentence was within the range available to the sentencing judge and not manifestly excessive, and therefore dismissed the appeal. The court's judgment emphasised the need to protect the community from repeat offenders and to ensure that such offenders understand that their conduct will not be tolerated further.

Orders