WALKER v NEW ZEALAND POLICE [2021] NZHC 2630

WALKER v NEW ZEALAND POLICE [2021] NZHC 2630 [4 October 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-083[2021] NZHC 2630BETWEEN ROBERT WALKERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 October 2021Appearances: A Burns for AppellantL J Evans for RespondentJudgment: 4 October 2021JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 4 October 2021 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Rotorua[1] Following a Judge-alone trial in the District Court Judge R G Marshall foundMr Walker guilty on a charge of burglary and a charge of intentional damage.1 On7 July 2021, the Judge sentenced Mr Walker to 18 months imprisonment.2[2] Mr Walker appeals against sentence.3 He contends the Judge ought to havesentenced him to home detention rather than imprisonment.Factual background[3] Mr Walker faced two charges of burgling the Howard Morrison PerformingArts Centre in Central Rotorua. These related to burglaries of the premises thatoccurred over the weekends of 27-28 November and 4-5 December 2020. Judgedismissed the charge relating to the latter but found the other charge proved.[4] In November 2020 the centre was undergoing repairs for damage caused by anearthquake. Mr Walker was working for a sub-contractor engaged to carry out workon the building.[5] The building was secured on the evening of Friday 27 November 2020. Atsome stage during the weekend Mr Walker climbed through a fence that had beenerected around the construction site. He then gained entry to the building by climbinga scaffold at the front of the building. This took him to a window that he entered.[6] Once inside the building, Mr Walker cut various cables and then used a ladderto climb into a large ducting unit. He used this to gain access to a room containing theair conditioning equipment for the building. Once inside that room Mr Walker causeda considerable amount of damage by cutting cables and taking doors off switchboards.He caused an extensive amount of damage to the room.[7] Mr Walker's role in the offending was discovered after the police obtained afingerprint lift from the inside of an electrical box in the air conditioning room. The1 New Zealand Police v Walker [2021] NZDC 13417.2 New Zealand Police v Walker [2021] NZDC 13830.3 Mr Walker originally appealed against both conviction and sentence but abandoned the appealagainst conviction prior to the hearing before me.Judge considered there was no credible explanation for Mr Walker's fingerprint in thatparticular location other than that it had been left there during the burglary.[8] The burglary had significant consequences. First, it required substantialfinancial outlay to repair. This cannot be quantified for present purposes becausedamage was caused during both burglaries and it is not possible to determine the orderin which it occurred. Secondly, there was considerable delay in completing theremedial work because of the need to repair the damage caused by the two burglaries.The burglaries also meant the head contractor was required to employ increasedsecurity at the site.The Judge's decision[9] The Judge considered the offending was planned but not sophisticated. Itresulted in wanton damage being caused to the building and this has resulted inconsiderable financial loss. The offending was aggravated by the fact that Mr Walkerhad targeted the premises through his employment on the site. However, the fact thatthe building was an unoccupied commercial building meant there was low risk ofpotential harm to others in the vicinity.[10] Taking those factors into account, the Judge considered a starting point of twoyears imprisonment was appropriate. He reduced this by three months to reflect thefact that Mr Walker had been subject to restrictive EM bail conditions beforesentencing. He then reduced the sentence by a further three months to reflect the factthat Mr Walker had not offended for approximately ten years. This resulted in an endsentence of 18 months imprisonment.[11] The Judge declined to impose a sentence of home detention for the followingreasons:4[19] I have considered whether a sentence of home detention would meetthe principles and purposes of sentencing and in my view it would not. Thisis serious offending of these commercial premises and an additional factor thatI omitted to emphasise was the impact on that Rotorua community for thistype of offending.4 New Zealand Police v Walker, above n 2.[20] Given the seriousness of the offending, in my view a deterrentmessage needs to be sent to you Mr Walker and other people that targetpremises like this albeit for small personal gain but wreaking, and you musthave appreciated it, considerable havoc in damaging the equipment andoperation of this centre for the sake of as I say not a lot of money for scrapmetal.[21] I do not consider an alternative sentence of home detention meets theprinciples and purposes of sentencing. The end sentence on the charge ofburglary will be one of 18 months' imprisonment. In addition to that you willhave the standard release conditions and the following special releaseconditions for six months after your sentence expiry date as set out in the pre-sentence report which is to:Grounds of appeal[12] On Mr Walker's behalf Mr Burns acknowledges that the pre-sentence reportrecommended a sentence of imprisonment. He points out, however, that the reportalso suggested that Mr Walker was at low risk of reoffending and low risk of harm toothers. In addition, the fact that Mr Walker had complied with the conditions of anearlier grant of EM bail meant that he was likely to comply with the conditions of asentence of home detention.[13] Mr Burns points out that Mr Walker has not been before the Court since 2012.He submits that, given the lack of recent previous convictions and his compliance withthe recent grant of EM bail, Mr Walker ought to have received a sentence of homedetention rather than imprisonment.Decision[14] A decision whether or not to convert a short sentence of imprisonment to asentence of home detention constitutes the exercise of a judicial discretion. As a result,an appellate Court will only interfere where the sentencing Judge has taken intoaccount irrelevant considerations, has failed to take into account relevantconsiderations or where the decision was plainly wrong.[15] The discretion is not, however, unfettered. It must be exercised having regardto the purposes and principles contained in the Sentencing Act 2002.[16] The passage set out above makes it clear that the Judge applied the sentencingprinciples of deterrence and denunciation in deciding to sentence Mr Walker toimprisonment rather than home detention. As a result, it cannot be argued that he tookinto account irrelevant considerations or failed to take into account relevantconsiderations.[17] As the Judge pointed out, Mr Walker's offending involved several aggravatingfeatures. It was obviously pre-meditated and resulted in considerable damage andfinancial loss. It also involved elements of breach of trust. Mr Walker gainedknowledge about the site that he burgled through his employment. He used thatknowledge to carry out the burglary. In addition, the offending had the potential tocause his employer considerable reputational damage. Taking these factors intoaccount I have no doubt the Judge was plainly correct to impose a sentence ofimprisonment rather than home detention.Result[18] The appeal against sentence is dismissed.Lang J