WALKER v NZ POLICE [2022] NZHC 2430

WALKER v NZ POLICE [2022] NZHC 2430 [22 September 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-112[2022] NZHC 2430BETWEEN CALVIN BRUCE WALKERAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentsHearing: 22 September 2022Appearances: K H White for AppellantL Fiennes for RespondentJudgment: 22 September 2022ORAL JUDGMENT OF EATON JIntroduction[1] Calvin Walker was sentenced in the District Court1 by Judge Duggan on14 June 2022 to 24 months' imprisonment, with leave to apply for home detention, inrespect charges of breaching intensive supervision;2 receiving over $1,000;3unlawfully taking a motor vehicle;4 and theft of between $500 and $1,000.5[2] Mr Walker appeals his sentence on the basis that it was manifestly excessive—the Judge having not provided a discount for personal mitigating factors relating to a1 New Zealand Police v Walker [2022] NZDC 11508.2 Sentencing Act 2002, s 70A(a); maximum penalty six months imprisonment or a fine notexceeding $1,500.3 Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years' imprisonment.4 Crimes Act, s 226(1); maximum penalty seven years' imprisonment.5 Crimes Act, ss 219and 223(c); maximum penalty one year imprisonment.s 27 report prepared after the District Court sentencing. He seeks a sentence of homedetention.Facts[3] In February 2021, Mr Walker had been sentenced to 12 months' intensivesupervision for receiving property (over $1,000). A condition of his supervision wasto not possess, consume or use any alcohol or drugs. On 3 November 2021, Mr Walkerreported to a probation office and provided a sample of his urine for drug testing. Thetest returned positive results for methamphetamine and cannabis.[4] On 4 January 2022, Mr Walker was driving a car which had been stolen thenight before, he jacked up a Ford Falcon, removed the left wheel, and put it in the backof the stolen car. When located by police, the car was searched. In addition to themag wheel, a backpack was found in the car containing stolen property including twopassports, two iPhones, as well as other documentation.Principles on appeal[5] An appeal against sentence is allowed as of right under s 244 of the CriminalProcedure Act 2011 and in accordance with s 250 of that Act. An appeal againstsentence may only be allowed by this Court if it is satisfied that there has been an errorin the imposition of the sentence and that a different sentence should be imposed.6The focus is not on the process by which the sentence was reached, but on thecorrectness of the end result.7 In making this assessment, appellate courts do notinterfere with the legitimate exercise of judicial discretion or indulge in mere tinkeringwith the sentence.District Court decision[6] The Judge considered Mr Walker's denial of the dishonesty offending and hislack of remorse, as well as his challenges with mental health and drug usage. Sheconcluded Mr Walker was unlikely to engage voluntarily with a drug programme.6 Criminal Procedure Act, ss 250(2) and 250(3).7 Ripia v R [2011] NZCA 101 at [15].[7] Taking the receiving charge as the lead, the Judge adopted a starting point of22 months' imprisonment. An uplift of eight months was applied for the remainingcharges. A further uplift of four months (13 per cent) for Mr Walker's previousconvictions brought the starting point up to 34 months' imprisonment.[8] A 25 per cent discount was applied for his guilty plea and the Judge applied afurther totality deduction (1.5 months) to bring Mr Walker's sentence to 24 months'imprisonment.[9] When considering home detention, the Judge recognised the issue was finelybalanced and noted Mr Walker's history, his failure to engage in rehabilitation, and hisexpressed desire to break his cycle of offending. The Judge considered a sentence of24 months' imprisonment was appropriate, with leave provided to apply for homedetention if a place in a residential treatment programme was secured.SubmissionsAppellant's submissions[10] Ms White, on behalf of Mr Walker, submits the s 27 report reveals matters thatjustify both a discount for personal factors and a reconsideration of whether homedetention is appropriate.[11] Whilst accepting that such reports should be provided at first instance,Ms White submits fresh reports are routinely accepted on appeal, and the presentreport is substantially helpful.[12] She contends there is a clear nexus between Mr Walker's background and hisoffending. His offending relates to drug use, which began at age 10 against abackground of drug exposure, abuse, neglect, and deprivation. She draws attention toMr Walker's mental health difficulties as reducing the culpability of his offending.Ms White proposes a discount of around 15 per cent as appropriate to recognisepersonal factors.[13] The report also refers to the support structures available to Mr Walker,including his first committed relationship, as well as his employable skills. Thesefactors, Ms White submits, encourage a sentence of home detention. She drawsattention to Mr Walker's arson conviction and argues that this makes gaining accessto a residential treatment programme as proposed by Judge Duggan highly unlikely,as those facilities tend not to accept people who have such a conviction, due toinsurance concerns.Respondent's submissions[14] Ms Fiennes, on behalf of the Police, submits the District Court decision wasappropriate, even accounting for the matters now raised in the s 27 report. Sheresponsibly acknowledges s 27 reports are routinely accepted as fresh evidence.Ms Fiennes says that the content of the report in this case might realise a discount of10 to 15 per cent.[15] But regardless, Ms Fiennes argues the end sentence that the District Courtimposed was not manifestly excessive. She points out that the guilty plea discount of25 per cent was generous given the plea came only at the second case review hearing.Ms Fiennes submits the Judge departed from the Moses methodology, and that led toa more generous outcome for Mr Walker. The Judge erred, she says, by usingMr Walker's previous convictions to reach an adjusted starting point of 34 months.Instead, a net discount of 12 per cent should have been applied to a starting point of30 months (reflecting a 13 per cent uplift for previous convictions and a 25 per centdiscount for guilty plea).[16] Ms Fiennes submits the concerns which led to the Judge not imposing asentence of home detention still remain notwithstanding the information in the s 27report and refers to the fact Mr Walker was in a relationship with his current partnerat the time and on intensive supervision at the time that he was usingmethamphetamine and committed the present offending. Ms Fiennes also points outthat Mr Walker had resisted positive engagement with Corrections, had failed to takerehabilitative steps when those opportunities had been presented, and had refused toconsent to a condition not to consume alcohol or drugs.Analysis[17] Neither counsel take issue with the starting point or uplift that was applied forother offending by Judge Duggan. A review of the cases reveals that while the startingpoint adopted in relation to the receiving charge might be described as stern, it wasavailable. Likewise, I consider the eight-month uplift on the remaining charges, thatled to a starting point of 30 months' imprisonment, to have been within range.[18] The uplift of four months (13 per cent) for previous convictions, particularlydishonesty offending, again, might be seen as stern but was within range. I agree theuplift should, consistent with Moses, have been considered alongside a discount forMr Walker's guilty plea rather than operating to increase the starting point.[19] The Courts considering guilty pleas entered at case review hearings adoptdiscounts of 25 and 20 per cent in a variety of scenarios, including full discounts whenpleas are entered following negotiations.8 Despite Mr Walker's earlier denials inrelation to the dishonesty offending, it was, in my view, open to Judge Duggan toprovide the full discount.[20] This results in a net discount of 12 per cent which would have led to a sentencein the District Court of 26.4 months.[21] What then of the s 27 report? The Court of Appeal has recognised, as a generalprinciple, that s 27 reports should not be admitted for the first time on appeal and maybe considered with remittal of the sentence to the sentencing court.9 But that is not aninvariable rule.10 The failure to secure the report in this case is unexplained. Ms Whitewas not counsel in the District Court. But Ms Fiennes responsibly did not oppose thereport being admitted. I have reviewed the report. I am satisfied it does offer relevantinformation and I consider it is in the interests of justice that it be admitted andconsidered in determining this appeal, and so I grant leave accordingly.8 Brown v Ministry of Social Development [2018] NZHC 3131; Watene v Police [2020] NZHC 3011;Miller v Police [2021] NZHC 1104; R v Te Awatea O Poututerangi Ahumai Tawa [2021] NZHC2091; Bowring v New Zealand Police [2020] NZHC 3252; and Doidge v Police [2021] NZHC2256.9 Laipato v R [2021] NZCA 562.10 Samuels v R [2022] NZHC 432.[22] The report, in my view, makes sobering reading. It is usefully corroborated,to an extent, by accounts from Mr Walker's sister, his partner, and records fromOranga Tamariki. Mr Walker's childhood was marked by instability. From the age ofthree he moved between foster care, his mother's house, and respite care beforemoving in with his grandparents at age 15. He suffered extensive neglect and abuse.He was exposed to drug use and began himself using cannabis at the age of 10 andmethamphetamine at age 19. His drug use was reinforced by peers at employment inhis youth. In addition, he struggles with depression and anxiety and reports his use ofmethamphetamine to regulate this. The report identifies the childhood experiences asbeing connected with Mr Walker's mental health issues, his continued substanceabuse, and offending. His offending is recognised as stemming from his drug use,particularly methamphetamine.[23] So it is not difficult, in my view, to be satisfied there is a clear nexus betweenMr Walker's background and the present offending. The s 27 report gives a credibleaccount of matters which may be considered to have impaired his choice anddiminished his moral culpability, with a resultant causative contribution to offending.In my view, a discount of 15 per cent to reflect his personal history is appropriate.[24] That leads to a net discount of 27 per cent to be applied to the starting point of30 months' imprisonment which leads to a sentence of 22 months' imprisonment.Judge Duggan, in the District Court, allowed a small totality adjustment. I agree thatis appropriate and I adjust the end sentence to one of 21 months' imprisonment.[25] I then turn to consider whether a sentence of home detention would beappropriate.[26] Home detention is an alternative to a short-term sentence of imprisonment.11The Court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.12[27] In Fairbrother v R, the Court of Appeal stated:1311 Sentencing Act 2002, s 15A(1)(b).12 Section 15A(1)(a).13 Fairbrother v R [2013] NZCA 340.[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other"[28] As was recognised by Judge Duggan, this is a finely balanced matter.Rehabilitation is a primary concern in the present case, but does it ultimately holdsway?[29] The Judge was correct to note Mr Walker's past behaviour as a predictor offuture conduct. Mr Walker appears to consistently fall back into drug use andoffending and has previously breached judicially imposed conditions. This limits theoptions available to him when a court considers alternative sentences. As the pre-sentence report writer noted, abstinence from substances would be necessary incombination with rehabilitation, oversight, and testing. This is compounded byMr Walker's failure to engage with rehabilitative options while in custody and hisrefusal to consent to a no-substance condition. Together, these are all strong factorsindicating home detention might be inappropriate.[30] But against this, I have the benefit of a very full s 27 report that does informthe Court as to matters relevant to the home detention determination. That includesthe pro-social influence of Ms Loader. The report makes clear her understanding ofthe need for Mr Walker to avoid triggers of his drug use and direct his energy towardsmore productive pursuits. It also illustrates the incentive Ms Loader provides, as MrWalker's first committed relationship, to avoid further relapses into drug use. I acceptthat factor is undermined by Mr Walker's offending while on intensive supervisionand whilst in a relationship with Ms Loader. I do note, however, that the offendingoccurred nine months into his intensive supervision sentence and, I am told, occurredafter a mental health episode.[31] Since the pre-sentence report, Mr Walker is said to have taken greaterownership of his offending and the role of drug use in that offending. His perspectiveon counselling appears to have improved. He also appears to recognise the need tonot associate with negative influences, though he has clearly had difficulty actioningthis in the past. I am very conscious of the incentives currently operating onMr Walker, these factors having surfaced since he was sentenced to imprisonment.But I do consider it appropriate to give careful consideration to those factors.[32] I am also mindful that he has now spent over three months in custody and I amoptimistic that he has been drug-free and during that period has further reflected onthe inevitable future he faces if he does not break the cycle of addiction and offending.[33] Judge Duggan recognised the value of home detention to an offender likeMr Walker. That is reflected in the reservation of leave to apply for home detention ifhe was accepted into an appropriate programme. That is complicated, however,because Mr Walkers' acceptance into a residential programme appears unlikely givenhis conviction for attempted arson. If that is indeed the reality, it poses a long termproblem for a person in Mr Walker's position to secure what might be described as theideal form of treatment.[34] As the Court of Appeal noted in R v Hill:14Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[35] Is there a realistic prospect that Mr Walker will be able to change? What I findtips the scales in this case is Mr Walker's level of involvement in recent weeks andmonths. Firstly, with the author of the s 27 report and, further, with his lawyers inrelation to his role in the enquiry into abuse in State care. Mr Walker has, throughboth those processes, been required to confront his past and, in doing so has identifiedunhappy experiences as a child which I have no doubt were causative of his addictionsthat followed both in relation to cannabis and methamphetamine. It is those addictionswhich have been the catalyst for his criminal offending. My sense is that he havingpresently engaged with his past, the time seems as ripe as it ever could be for a person14 R v Hill [2008] NZCA 41 at [37].in Mr Walker's position to make important decisions as regards his future. He is verymuch at a cross-roads and, in my view, the Court ought to take the opportunity thecurrent circumstances present to encourage him down the path of rehabilitation.[36] Therefore, on balance and having had the benefit of information that was notavailable in the District Court, I think Mr Walker is able to change and home detentionwould be appropriate. I acknowledge there is a risk of further offending whichstandard conditions of home detention Salone would not adequately address, so thereneeds to be particular conditions to discourage a relapse into drug use and offending.[37] As regards the length of sentence, the usual practice would be to halve thesentence of imprisonment in imposing home detention, as well as to make necessaryreductions based on the time spent in custody. However, as noted by the Court inR v Bisschop, the "proper approach...is an evaluative assessment of all thecircumstances".15 There must be an overall assessment of all factors relevant to theparticular offender and consistent with the purposes and principles of the SentencingAct.[38] As I have indicated, this is a finely balanced appeal. If it was not for theadditional information in the s 27 report and the likely unavailability of a residentialtreatment programme, then a different conclusion may have been reached. I amconscious that significant intervention appears necessary to move Mr Walker awayfrom drug use and further offending, as well as improving his mental health. That isgoing to take not only focus and commitment, but time. Therefore, I fix theappropriate term of a sentence of home detention as being 10 months with post-detention conditions.Conclusion[39] The appeal is allowed. The sentence of 24 months' imprisonment is quashedand a sentence of 10 months' home detention substituted. That sentence is to be servedat the address recorded in the pre-sentence appendice. In addition to the standardconditions I impose the following special conditions:15 R v Bisschop [2008] NZCA 229 at [18].(a) Not to possess, consume, or use any alcohol or drugs not prescribed tohim.(b) He is to submit to testing for alcohol or drugs if required by a police orprobation officer.(c) He is to attend and complete any recommended intervention for alcoholand drug use to the satisfaction of the probation officer.[40] Given the risk of further offending I also impose the same three conditions asspecial post-detention conditions under s 80P of the Sentencing Act 2002[41] Mr Walker should be under no illusion that he is being given an opportunity bythis Court to confront his long standing addiction. He is encouraged to embrace thatopportunity but he will know that a failure to positively engage will have predictableconsequences for him....................................................Eaton JSolicitors:Public Defence Service, ChristchurchCrown Solicitor's Office, Christchurch