Behan-Kitto v Police - [2017] NZHC 2101

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2017-443-17 [2017] NZHC 2101

BETWEEN
SHAYNE EDWARD HETEKIA BEHAN-

KITTO Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 August 2017

Appearances:

J Woodcock for the applicant
R Kos and H Savage for the respondent

Judgment:

31 August 2017

JUDGMENT OF CULL J

[1] This is an appeal against sentence, arising out of repeat domestic violence offending. Mr Behan-Kitto pleaded guilty to two charges of contravening a protection order,1 one charge of male assaults female,2 and one charge of burglary.3

[2] On 16 May 2017, Judge Barkle sentenced Mr Behan-Kitto to two years and one months’ (25 months) imprisonment.4 He now appeals this sentence on the basis that it was manifestly excessive.

Factual background

[3] Mr Behan-Kitto and his partner (the victim) had been in a relationship for approximately eight years and have four children together. At the time of the

1      Domestic Violence Act 1995, ss 19(2)(c), 49(1)(a) and 49(3), maximum penalty of three years’
imprisonment.
2      Crimes Act 1961, s 194(b), maximum penalty of two years’ imprisonment.
3      Section 231(1)(a), maximum penalty of 10 years’ imprisonment.
4      R v Behan-Kitto [2017] NZDC 10140.

offending, she was pregnant with their fourth child. She also has another child living with her, which Mr Behan-Kitto treats as his own.

[4] A final protection order was issued on 12 May 2016. Although the couple had reconciled in July 2016, by 31 August 2016 they agreed they needed to separate. At this time, Mr Behan-Kitto was subject to supervision and community work in respect of previous domestic violent offending against her.

[5] On 1 September 2016, the victim packed Mr Behan-Kitto’s belongings and asked him to leave the house, which he refused to do. Over the course of that day, she asked him numerous times to leave, which he eventually did at 11 pm that night. He returned, however, to the same address on 2 September 2016 and remained, despite being asked numerous times to leave.

[6] Later that evening, Mr Behan-Kitto lured the victim into the basement garage. He grabbed her from behind once she was in the basement and put both his hands over her mouth and nose, preventing her from talking and breathing for a short time. She managed to pull away and push Mr Behan-Kitto some distance in an attempt to escape. He grabbed her by the arm. One of the children came into the basement, saw what was going on and screamed, causing Mr Behan-Kitto to release the victim. Back inside the house, Mr Behan-Kitto would not let the victim leave. When he went outside at one point, the victim took the opportunity to leave and went to her mother’s house.

[7] Two days following, on 4 September 2016 at approximately 8.30 pm, Mr Behan-Kitto arrived unannounced at the victim’s mother’s address. Mr Behan- Kitto yelled at the victim to come outside, which she did not. He sent text messages to her mother, and she remained inside. He then…

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 Behan-Kitto v Police

Details

AGLC: Behan-Kitto v Police [2017] NZHC 2101
Case: [2017] NZHC 2101
Decision Date: 31 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Shayne Edward Hetekia Behan-Kitto appealed against his sentence for multiple charges, including violating a protection order, assaulting his female partner, and burglary. The District Court had sentenced him to two years and one month's imprisonment, which he deemed manifestly excessive. The appellant's main contentions were that the starting point for the totality of the offending was too high, the judge incorrectly uplifted the starting point for earlier offending involving the same victim, and the judge erred in finding that the offending took place under the influence of methamphetamine was an additional aggravating feature. The Crown opposed the appeal, asserting that the sentence was within the range available to the judge, who appropriately considered all relevant factors. The Court found that the starting point for the totality of offending was within the appropriate range, the judge's approach in considering the appellant's previous convictions was not in error, and the reference to the appellant's methamphetamine use as an aggravating factor did not result in any error. The appeal was dismissed, and the sentence of two years and one month's imprisonment was upheld.

Orders