Walker v Police [2012] NZHC 2628 (9 October 2012)

Last Updated: 18 October 2012

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-25 [2012] NZHC 2628

SHYAN ELJLAY TAWHITI WALKER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 October 2012

Counsel: R Philip for the Appellant

N M Graham for the Respondent

Judgment: 9 October 2012

_{(ORAL) JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr R Philip, Bate Hallett Laywers, Solicitors, Hastings

Ms N M Graham, Elvidge & Partners, Office of the Crown Solicitor, Napier

WALKER V POLICE HC NAP CRI-2012-441-25 [9 October 2012]

[1] Mr Walker appeals against a sentence of 25 months imprisonment for burglary. The actual sentence imposed on the date was 26 months. There was an additional month imposed following remission of fines. However, the appeal is directed to the 25 months for burglary. This sentence was cumulative on sentences being served of a total of 7 months for a number of offences which I will come to.

[2] The offences under appeal occurred on seven occasions between 10 February and 30 March 2012. Mr Walker climbed over a two metre high electrified security fence around commercial premises in Waipukurau. He stole scrap copper or other metal from bins in the yard of the premises. This occurred late at night or in the early morning. The value of the metal taken on each occasion varied from around

$80 to $200. The total taken on the seven occasions, at the lower value estimates, is

$640 on six occasions and an unknown amount, but presumably much the same, on the other occasion.

[3] Mr Walker was charged on 12 April 2012. He pleaded guilty on 8 May and was sentenced in the District Court on 27 June 2012.

[4] The effective end sentence of 7 months the appellant was then serving related to the following, taking the details from Mr Philip’s submissions for the appellant. On 27 April 2012 the appellant was sentenced to 1 month imprisonment for preparing to commit a crime in a public place, committed on 6 February 2012, and to

7 months imprisonment for an assault with a blunt weapon and wilful damage, which occurred on 10 February 2012, and 1 month imprisonment for theft of copper wire from a fenced paddock on Omahu Road, committed on 7 March 2012. A further sentence of 7 months imprisonment was imposed for driving whilst suspended on 15

March 2012 (third or subsequent). All sentences were concurrent.

[5] The seven burglary charges were not dealt with in conjunction with the other charges because the appellant sought further legal advice before entry of a plea. However, as will be apparent, the burglary offending I am now dealing with occurred over the same time period as the other offending.

[6] The essence of the Judge’s reasons for the sentence were as follows:

[7] In sentencing I do also have to bear in mind the totality of the offending. Each of these burglaries carries a maximum penalty of 10 years’ imprisonment. However, obviously, we cannot approach it in that way. It was all part of a spree so, in my view, all sentences should be dealt with together and should be concurrent. Any one of these could warrant at least a starting point of 12 months’ imprisonment.

(a) I think the appropriate way to deal with it is to look at it in totality and take a starting point of two and a half years’ imprisonment. I am going to uplift that by six months, because of your one previous conviction for burglary, to three years.

(b) I will reduce it down by 25 per cent giving you credit for your guilty plea and that brings us back down to 27 months’ imprisonment. In addition I will give you a small discount for your additional remorse and bring that back down to 25 months’ imprisonment.

(c) That sentence will be cumulative on the existing sentence and, because of the length of it, you will be subject to conditions from the Parole Board on release. But I think it is more appropriate that they deal with that then. That is where the sentence has ended up and that is the appropriate way to deal with it.

[7] In support of the appeal Mr Philip submitted that the uplifted starting point for all of the offences of 2 years and 6 months was manifestly excessive. He submitted that what I call the uplifted starting point – directed to the offending itself

– should have been no more than 15 to 18 months imprisonment. He further submitted that the following circumstances are relevant:

(a) The property burgled was a commercial yard where the actions of the Appellant were climbing over a wire fence into the enclosed yard to carry off scrap metal.

(b) There was no heightened risk of confrontation with the occupants given the premises not being occupied.

(c) There was no sophistication to the offending or wonton destruction of property.

(d) The property stolen was of low value.

[8] In respect of the low value as a relevant consideration, Mr Philip referred in

_{particular to the Court of Appeal’s decision in R v Columbus.}[1]

[9] He also submitted that decisions in Pluim,[2] Palmer[3] and Bowring[4] were relevant by way of comparison. Palmer perhaps has minimal relevance from a comparable point of view. The offending in Pluim and Bowring was more serious than in the present case.

[10] There was no challenge to the uplift of 6 months for prior convictions, or to the discounts for the guilty pleas and for remorse of 25% and 2 months respectively. Mr Philip did submit that there was an error by the Judge in failing to consider the totality of the sentences having regard to the imposition of a cumulative sentence. The end result is a total of 33 months imprisonment for all of the offending.

[11] Ms Graham submitted that, although the uplift for previous offending may be considered to be severe, the Judge’s approach in other respects was well within range. She submitted that a starting point for one of the burglaries of 12 months was certainly within range and as a consequence an uplift to 2 ½ years imprisonment for six more burglaries could not at that point be said to be manifestly excessive. Ms Graham supported the submission by reference to Stephens,[5] Bowring[6] and Gordon.[7]

Discussion

[12] I am satisfied that the uplifted starting point of 2 years 6 months imprisonment is manifestly excessive. These were seven separate criminal entries to the premises. But it was low level offending. It was not offending which resulted in any risk to other people. On each occasion the appellant jumped a fence but there was no damage to property. Other mitigating factors are as noted by Mr Philip and set out earlier.

[13] In my judgment if the appellant had gone over the fence on one occasion and taken around $700 to $800 of scrap metal – being the total taken on seven occasions

_{– a starting point of 12 months imprisonment would be realistic. That I believe is in}

fact, to an extent, supported by the cases referred to by Ms Graham. The fact that there were seven separate burglaries cannot be ignored. But assessing the matter in this way does in my judgment lead to a conclusion that a 12 month starting point for one of the offences is manifestly excessive.

[14] There is also need in my judgment to consider the totality principle. Had the appellant received the legal advice he was seeking for all matters at the time of the first lot of sentencing, all of the offences would have been dealt with together. That may still have resulted in cumulative sentences for some of the types of offending. But the fact that all the matters were dealt with together would have made the need to address totality more immediate. A total of 33 months in prison for the various offences in question is a matter of concern.

[15] In my judgment the appropriate uplifted starting point for these very closely connected burglaries of the same premises should be around 15 months. An uplift for the single previous offence of burglary of 6 months is high, but if it is left at that level it takes the sentence to 21 months imprisonment. At this point the length of imprisonment might be seen as an increased starting point and a lower uplift. Making the allowances the Judge made for remorse and related matters, and then a

25% reduction for the guilty plea, brings the end sentence to 14 months imprisonment.

[16] Accordingly, the sentence of 2 years and 2 months imprisonment is squashed and a sentence of 14 months imprisonment is substituted. There will be a cumulative sentence of 1 month imprisonment as imposed by the Judge following remission of the fines. These sentences are cumulative on the sentences imposed on the appellant

_{in the District Court on 27 April 2012.}

Woodhouse J

---

[1] R v Columbus [2008] NZCA 192.
[2] _{Pluim v Police [2012] NZHC 1592.}
[3] _{Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009 per Woodhouse J.}
[4] _{Bowring v Police HC Gisborne CRI-2009-416-12, 31 July 2009 per Lang J.}
[5] _{R v Stephens [2009] NZCA 190.}
[6] _{Bowring v Police n 4 above.}

[7] Gordon v Police HC Wanganui CRI-2009-403-0003, 12 February 2009 per Dobson J.