WALKER v POLICE [2018] NZHC 1388

WALKER v POLICE [2018] NZHC 1388 [12 June 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-5[2018] NZHC 1388BETWEEN CALLUM MATTHEW WALKERAppellantAND NEW ZEALAND POLICERespondentHearing: 6 June 2018Appearances: S Saunderson-Warner for AppellantR Smith for RespondentJudgment: 12 June 2018JUDGMENT OF MANDER J[1] The appellant, Mr Callum Walker, was sentenced to two years' imprisonmenton a charge of injuring with reckless disregard, a charge of obstructing police, twocharges of shoplifting, and two charges of breaching release conditions.1 He appealsthat sentence on the basis it was manifestly excessive. He says the overall startingpoint was too high, and the discount for personal mitigating features, including hisguilty plea, was too low.Background[2] The most serious offending for which Mr Walker was for sentence was thecharge of injuring with reckless disregard for the safety of other persons. On30 September last year, Mr Walker, over the course of that day, became increasinglyabusive and aggressive towards his 16-year-old sister. In the early evening, he smokedcannabis with his partner and became more aggressive. The sister called the police1 Police v Walker [2018] NZDC 3794.who attended the address to issue Mr Walker with a Police Safety Order. Mr Walkerlocked himself in his bedroom and was hostile and abusive towards the attendingofficers.[3] The police ultimately resorted to using force to enter the room. One of theofficers used his shoulder to force the door open. The architrave of the door gave way.Mr Walker responded by throwing his body against the door, slamming it shut. Theofficer managed to force entry into the room, during the course of which the architravefell into the room. Mr Walker grabbed the architrave and "slammed" it into theofficer's face. The officer raised an arm to protect himself, however, the architravestruck him on the forehead and wrist, resulting in an exposed nail being driven intohis hand, causing a puncture wound.[4] Despite Mr Walker being told he was under arrest for assault, he continued toresist and the police were required to resort to using pepper spray, a baton andhandcuffs to restrain him. No explanation was offered by Mr Walker for his actions.It was submitted on his behalf at sentencing that he was under the influence of illicitsubstances.[5] The two shoplifting offences involved items that Mr Walker stole from TheWarehouse in June and July 2017. On the first occasion he took a pair of headphonesvalued at $159 and hid them in his jacket. When the security alarm was triggered,Mr Walker handed his jacket to an associate before being searched, successfullyevading detection. On the second occasion, he took some cabling valued at $10 andput it in his backpack.[6] In September 2017, Mr Walker twice breached release conditions that had beenimposed on him after his release from prison in February 2017. On one occasion, hefailed to report to his probation officer, and on the other he was found in possession ofdrugs.District Court sentencing[7] In sentencing Mr Walker, Judge Turner noted the pre-sentence report assessedhim as a medium risk of harm to others and at high risk of reoffending due to his "poorengagement" with past rehabilitative sentences and history of offending. Thisincluded previous violence towards police and family members. Reference was madeto a prior period in prison when Mr Walker intentionally damaged a television and wascaught with a sharpened chair leg. The report writer also assessed Mr Walker as a highrisk drug user. Mr Walker has admitted to having consumed an array of drugs,including synthetic cannabis, methamphetamine and hallucinogens.[8] In respect of the lead charge of injuring with reckless disregard, the Judgeidentified the aggravating features as including the use of a weapon, attack to the head,and the fact the victim was a police officer acting in the course of his duty. It wasnoted that while the violence was not extreme it did follow an extended period ofaggression and abuse which had, no doubt, been aggravated by the consumption ofillicit drugs.[9] In setting the starting point, Judge Turner drew on the guideline decision ofNuku v R, expressly noting the need to make an appropriate adjustment for the lessercharge of injuring with reckless disregard, rather than that of having an intention toinjure.2 Drawing on the identified bands in Nuku, the Judge considered the offendingfell within Band 2 where starting points of up to three years' imprisonment wereconsidered appropriate where three or less aggravating features are present. Allowingfor the lesser mens rea involved in Mr Walker's offending, Judge Turner adopted astarting point of two years' imprisonment.[10] An uplift of three months was then applied in recognition of the other chargesfor which Mr Walker was for sentence. Three months for the fact the offendingoccurred while Mr Walker was on release conditions was added. A further two monthuplift was then applied to reflect Mr Walker's previous convictions for violence andtheft and the need for personal deterrence. That brought the overall starting point toone of two years and eight months' imprisonment.[11] Notwithstanding that the report writer had recorded Mr Walker as havingshown little remorse, the Judge was prepared to acknowledge that Mr Walker hadwritten a letter of apology to the victim and had been willing to attend a restorative2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.justice conference. The Judge accepted that since Mr Walker's remand in custody hehad taken "some steps to take stock" of his life and was beginning to show someinsight into the causes of his offending. Judge Turner was also prepared toacknowledge Mr Walker's willingness to pay reparation. Together with credit for theentry of his guilty pleas, an effective sentence of two years' imprisonment wasimposed.Approach to appeal[12] Mr Walker's appeal can only be allowed if I am satisfied that there is an errorin the sentence imposed and that an alternative sentence should be imposed.3 If thesentence can be properly justified having regard to relevant sentencing principles, theappeal Court cannot substitute its own views for those of the sentencing Judge. Thesentence must be either manifestly excessive or inappropriate if the Judge's sentencingdiscretion is to be interfered with.[13] It is not sufficient that a Judge may have made an error in his reasoning. Thefocus is on the sentence imposed rather than the process by which the sentence wasreached or its component parts.4The appeal[14] Ms Saunderson-Warner on behalf of Mr Walker submitted the sentence whichultimately resulted was manifestly excessive. She alleged three errors in support ofthis ground of appeal. Firstly, she submitted Judge Turner had adopted a starting pointin relation to the injuring charge that was too high and failed to reflect the lesser mensrea of recklessness. Secondly, that the uplifts to that starting point were too great.Thirdly, that despite Judge Turner indicating he would apply the "usual credit" for aguilty plea, that had not been reflected in the final sentence imposed.[15] The Crown submitted the sentencing Court made no error in the way it appliedNuku in an adjusted form. Mr Smith for the Crown submitted the cumulative upliftsin recognition of the other offending for which Mr Walker was for sentence, and his3 Criminal Procedure Act 2011, s 250.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].long and recent history for relevant previous offending, were well within range. Hesubmitted that a total discount of 25 per cent for remorse and Mr Walker's guilty pleaswas appropriate.DiscussionThe starting point[16] No issue is taken with Judge Turner's use of the Court of Appeal's guidance inNuku in setting the appropriate starting point for a charge of injuring with recklessdisregard. In Waitohi v R, that Court held that Nuku may provide useful guidance byanalogy in such cases.5 However, care is required to account for the different mentalelement and the effect this may have on the applicability of some of the Nuku factors.6[17] Band 2 of Nuku, which was applied by Judge Turner, is for offending in respectof which three or fewer of the listed aggravating features are present. It attracts astarting point of "up to three years". The sentencing Judge identified the use of aweapon, attack to the head, and attack on a police officer, as aggravating features. Healso noted the potential for a more serious injury. Having observed that a starting pointof up to three years imprisonment was appropriate for offending that fell within Band2 of Nuku, it follows that the Judge must have considered Mr Walker's offendingwould have fallen at the top of that band but for the lesser mens rea.[18] It is accepted that because the victim was a police officer acting in theexecution of his duty, that aggravating feature must be reflected in the sentence. It isan aggravating factor that is specifically recognised in the Sentencing Act 2002.7 Assubmitted by Mr Smith, violence against police officers has long been treated by theCourts as an aggravating feature justifying an increase in the starting point.8 The needfor a condign response by the Court when a police officer is attacked will increase anotherwise appropriate sentence and is to be viewed as a very serious aggravatingfactor.95 Waitohi v R [2014] NZCA 614 at [16].6 Waitohi v R, above n 4; Harnay v Police [2014] NZHC 2015.7 Sentencing Act 2002, s 9(1)(fa).8 R v Bryant [1980] 1 NZLR 264 (CA); R v McKay CA307/84, 3 April 1985; R v Namana [2001] 2NZLR 448 (CA); Taylor v R [2013] NZCA 417.9 Cooper-Siggleko v R [2012] NZCA 580.[19] Mr Smith responsibly acknowledged that the injury caused to the officer didnot of itself represent a separate aggravating feature and that, having regard to itsnature, it was no more than was required to meet the threshold for the injuring elementof the charge. The injury was accepted as incapable of constituting a discreteaggravating feature.[20] In relation to the targeting of the head, Ms Saunderson-Warner submitted thatcaution needs to be applied in circumstances where it is not alleged there was anyintention to inflict injury, but, rather, that the defendant had been reckless.Consideration of this factor tends to highlight the appropriateness of the charge andhow the factual particulars of the offending may be required to be interpreted in orderto align with the charge laid.[21] The issue is further complicated by the particulars describing the assault as setout in the summary of facts. Mr Walker is described as having grabbed the architrave,which is previously described as having "fallen in to the room". It is not entirely clearwhether Mr Walker has picked the architrave up and used it as a club, or pushed thearchitrave that has come away from the wall into the officer. The latter interpretationis more consistent with the charge, whereas the former description would support atargeting of the head.[22] Ms Saunderson-Warner submitted that the aggravating element of using thearchitrave as a weapon may qualify as a "moderately" aggravating feature, but that itwas not a situation where a person had intentionally armed themselves with a weapon.Rather, she submitted, the architrave was immediately at hand and a means by whichMr Walker could continue to resist police forcing themselves into his room.Ms Saunderson-Warner argued that while pushing the architrave towards the officerwas certainly reckless, it was not a situation where he had deliberately armed himselffor the purpose of inflicting an injury.[23] In response Mr Smith described Mr Walker's use of the architrave as "simplypushing it towards the officer" could not realistically reflect what had occurred.Furthermore, he submitted that the item was clearly capable of causing serious injury,being a heavy wooden object with a protruding nail. Mr Smith submitted that theopportunistic use of the architrave as a weapon reflected the absence of anypremeditation or intention to injure, but the fact remained that a weapon was used.[24] In Setu v R, the Court of Appeal observed that sentencing Judges need toexercise judgment in assessing not only the number of aggravating factors but alsotheir gravity.10 The placing of a particular case within a band is also very much anevaluative exercise with there being significant overlap at the margins.11 That isreflected in the bands set out Nuku v R:12The following bands apply:(a) Band 1: Where there are few aggravating features, the level ofviolence is relatively low and the sentencing Judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.(b) Band 2: A starting point of up to three years will be appropriate wherethree or fewer of the aggravating factors listed at [31] of Taueki arepresent.(c) Band 3: A starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will apply wherethree or more of the aggravating features set out in Taueki are presentand the combination of those features is particularly serious. Thepresence of a high level of or prolonged violence is an aggravatingfactor of such gravity that it will generally require a starting pointwithin Band 3, even if there are few other aggravating features.[25] The approach taken by the sentencing Judge in this case would indicate that heconsidered the offending would have fallen at the top of Band 2 had it been a chargeof injuring with intent to injure. However, Band 3 provides for a starting point of twoyears up to the statutory maximum where three or more aggravating features arepresent which in combination are particularly serious. There is an obvious overlapbetween Bands 2 and 3. What is apparent is that simply because three aggravatingfactors are present, it does not necessarily follow that the offending will fall into thetop of Band 2.10 Setu v R [2018] NZCA 127.11 Setu v R, above n 9.12 Nuku v R, above n 2, at [38].[26] As stressed by the Court of Appeal, the application of the bands is an evaluativeexercise. However, because three factors are present, it does not mean a certainprescribed level of sentence has to be imposed. In the present case, there was clearlya very significant aggravating feature arising from Mr Walker's offending, which wasthat the assault was on a police officer. However, I do not consider the use of thearchitrave as a weapon in the circumstances of this case gives rise to the ordinaryaggravation of an offence usually associated with that factor.[27] Similarly, the fact the officer was struck in the head does not mean, havingregard to the nature of the allegation, that Mr Walker was seeking to target the head inthe circumstances of this case. Judge Turner was correct to take both factors intoaccount, but I do not consider the aggravating features in combination would likelyhave resulted in a three year starting point had the charge included the mens rea of anintention to injure.[28] Ms Saunderson-Warner referred to a number of sentencing decisions involvingcharges of injuring with reckless disregard which she relied upon to demonstrate thatthe sentence in the present case was too high.13 Two of the cases cited involvedSolicitor-General appeals. While I acknowledge that more modest sentences havebeen imposed for what would have to be considered more serious offending, I do notconsider they provide much assistance. Inevitably, the facts and circumstances of eachindividual case will vary. Illustrative of that difficulty is that none of the other casesinvolved violence against a police officer, a point on which Mr Smith placed someemphasis.[29] Having acknowledged that important feature, I consider that a starting point oftwo years' imprisonment, in the circumstances of this particular case, for a charge ofinjuring with reckless disregard, fell outside the available range in the exercise of theJudge's discretion. In my view, the offence would have attracted a starting point inthe range of two to two and a half years had Mr Walker been facing a charge allegingan intention to injure. Making an appropriate adjustment for the lesser offence of13 Solicitor-General v SC [2017] NZHC 2252; Gowing v R [2017] NZCA 133; Police v Filipo [2016]NZHC 2620.injuring with reckless disregard, I consider the appropriate starting point would havebeen one of 18 months' imprisonment.Uplifts to the starting point[30] I do not consider this aspect of the appeal has merit. Judge Turner applied anuplift of three months in recognition of the charges of theft, breach of releaseconditions and obstruction of police. Having regard to the discrete nature of thisoffending, the uplift was well within range.[31] The uplift of three months to reflect that the offending occurred whileMr Walker was subject to release conditions was similarly available to the Judge.Mr Walker was subject to release conditions at the time he offended in June, July andSeptember 2017. It is clear from the attitude he was exhibiting at the time, as recordedin pre-sentence reports, that Mr Walker was unmotivated to comply with his releaseconditions which he largely ignored.[32] Mr Walker has six previous convictions relating to dishonesty, seven previousconvictions for violence, and convictions for wilful damage, possession of weapons,and resisting police, including a prior conviction for assaulting police. I accept theCrown's submission that the uplift of two months to reflect this prior offending andthe obvious need for personal deterrence, in response to offending which representeda continuation of Mr Walker's prior criminal history, was generous. The overall upliftof eight months' imprisonment was unremarkable.Credit for mitigating factors[33] Ms Saunderson-Warner's submission that inadequate credit had been extendedfor mitigating factors identified by Judge Turner rests on the Judge's remark in hissentencing notes, that the "usual credit available for the entry of guilty pleas" wouldbe applied. Ms Saunderson-Warner submitted that should that be interpreted as areference to the maximum credit of 25 per cent which is available to a defendantshould they plead guilty at the first reasonable opportunity.14 This comment by the14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.Judge came after his acknowledgement that he was prepared to account forMr Walker's remorse and recent efforts by him to address his situation.[34] In the event, Mr Walker pleaded guilty at the case review hearing and not atthe first reasonable opportunity. It is reasonable to assume that Judge Turner extendeda 20 per cent discount for the guilty plea and an additional 5 per cent credit forcircumstances personal to Mr Walker, hence the 25 per cent reduction from the overallstarting point. Such an approach cannot be criticised, and Ms Saunderson-Warnerresponsibly acknowledged that if I consider that was the approach adopted by theJudge, she would not press the matter further. It should be noted that even should adefendant plead guilty at the first reasonable opportunity it does not follow that thedefendant is "entitled" to a 25 per cent reduction. I appreciate that has become thesentencing practice, but the Supreme Court, in R v Hessell, held that all thecircumstances of the defendant's offending, including the strength of the prosecutioncase, should be taken into account when setting the appropriate credit notwithstandingthe timing of the entry of the guilty plea.15[35] I do not consider, having regard to the timing of Mr Walker's plea, that thecredit extended to him by the sentencing Judge, in combination with the considerationsof remorse and the offender's personal circumstances, were other than appropriate.Result[36] The appeal is allowed. The sentence of two years' imprisonment on the chargeof injuring with reckless disregard is quashed and substituted with a sentence of 19months' imprisonment. The sentences imposed in respect of the other charges remainunchanged, as do the special release conditions.Solicitors:Sarah Saunderson-Warner, DunedinRPB Law, Dunedin15 R v Hessell, above n 13.4