Cross v Police - [2020] NZHC 3474

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-129

[2020] NZHC 3474

BETWEEN
KYLE CROSS

Appellant

AND

NZ POLICE

Respondent

Hearing: 7 December 2020

Appearances:

K Hadaway for the Appellant O M Salt for the Respondent

Further submissions:

11 December 2020

Judgment:

22 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 December 2020 at 3.30 pm Registrar/Deputy Registrar
Date:

CROSS v NZ POLICE [2020] NZHC 3474 [22 December 2020]

[1] Kyle Cross has appealed a sentence of two and half years’ imprisonment imposed by Judge T R Ingram.1

[2] Mr Cross had pleaded guilty to failing to answer bail; burglary; assaulting a Police Officer; driving while disqualified; reckless driving; shoplifting; theft; and two charges of receiving. Mr Cross appeals his sentence on the basis Judge Ingram:

(a)adopted a starting point that was manifestly excessive;

(b)failed to adequately take account of relevant mitigating factors; and

(c)imposed a disqualification period that was manifestly excessive.

District Court decision

Judge Ingram set out that the following facts gave rise to Mr Cross’ offending:

(a)On 23 December 2019 Mr Cross breached bail.2

(b)On 10 March 2020 Mr Cross took a caravan from a local caravan yard and drove away with it attached to his car. The Police pursued Mr Cross with activated red and blue flashing lights for approximately 70 kilometres. During this pursuit Mr Cross drove whilst disqualified, drove in excess of the speed limit, drove recklessly causing the caravan to detach from his vehicle, and failed to stop. Mr Cross eventually crashed his vehicle and was located by Police. In his attempt to resist arrest he assaulted a Police Officer.3

(c)On 20 June 2020 Mr Cross stole clothing from a Farmers retail store.4

1      Police v Cross [2020] NZDC 20613.
2 At [2].
3      At [2], [4] and [5].
4      At [3] and [9].

(d)On 19 June 2020 Mr Cross drove away from a petrol station without paying.5

(e)On 2 September 2019 Mr Cross came into the possession of a stolen fibre gun and in January 2020 he was stopped by Police driving a vehicle that had been stolen from a car yard.6

[4] Judge Ingram did not accept Mr Cross’ explanation that he was unduly influenced to engage in this offending by his friends,7 but was satisfied that methamphetamine had “been a significant problem” for Mr Cross that had “caused [him] to offend in this way”8 and acknowledged that the pre-sentence report recommended a sentence of home detention to allow Mr Cross to receive help for his addiction.9 Judge Ingram, however, concluded “there [was] no sentence which could [ever] be appropriate [for this offending] except a sentence of imprisonment”.10

[5] Judge Ingram then proceeded to address the starting point for the offending, noting:11

Having reflected on the matter I have come to the view that an appropriate starting point for the event of 10 March could not be any less than 18 months’ imprisonment. There would…

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 Cross v Police

Details

AGLC: Cross v Police [2020] NZHC 3474
Case: [2020] NZHC 3474
Decision Date: 22 December 2020

CaseChat Overview and Summary

Kyle Cross appealed against the two and a half year imprisonment sentence imposed by Judge Ingram. The sentence arose from Mr Cross pleading guilty to a number of charges, including failing to answer bail; burglary; assaulting a police officer; driving while disqualified; reckless driving; shoplifting; theft; and two charges of receiving. Mr Cross appealed on the basis that the Judge adopted a starting point that was manifestly excessive, failed to adequately take account of relevant mitigating factors, and imposed a disqualification period that was manifestly excessive. Ms Hadaway, counsel for Mr Cross, submitted that Judge Ingram erred in three respects. The appeal was governed by the Criminal Procedure Act 2011, and section 250(2) provided that the Court must allow the appeal if satisfied that for any reason, there was an error in the sentence imposed, and a different sentence should be imposed. The starting point of 36 months’ imprisonment was not warranted. A deduction of 10 per cent was warranted to reflect Mr Cross’ addiction concerns, remorse and rehabilitative efforts to date. Leave was granted for Mr Cross to substitute his sentence for one of home detention if and/or when he was able to find an appropriate address, preferably one that could provide appropriate rehabilitation. The period of disqualification imposed was not excessive. The appeal was allowed in part. The sentence of 18 months’ imprisonment on the burglary charge was quashed and in its place a sentence of 12 months’ imprisonment was imposed. The sentence of 12 months’ imprisonment on the two receiving charges was quashed and sentences of 9 months’ imprisonment were imposed. These sentences were imposed cumulatively on the sentence for burglary, resulting in a total end sentence of 21 months’ imprisonment. Mr Cross was granted leave to apply to substitute this sentence for one of home detention. The remainder of the sentence remained unchanged.

Orders