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Herk v Police

Herk v Police

Case [2025] NZHC 1183 15 May 2025

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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2025-442-000009

[2025] NZHC 1183

BETWEEN
RORY RICHARD HERK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2025

Appearances:

E J Riddell for Appellant

D W Baxter for Respondent

Judgment:

15 May 2025

JUDGMENT OF PRESTON J

This is a redacted version of the judgment for publication

This judgment was delivered by me on 15 May 2025 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

HERK v NEW ZEALAND POLICE [2025] NZHC 1183 [15 May 2025]

Introduction

[1] Rory Richard Herk (age 42) appeals, as manifestly excessive, the sentence imposed by Judge Snell in the District Court of two years’ and nine months’ imprisonment on the following charges:1

(a)possession for supply of a class C controlled drug, namely cannabis;2

(b)possession of a class A controlled drug, namely methamphetamine;3

(c)possession of a drug utensil;4

(d)possession of a class C controlled drug, namely cannabis;5

(e)dangerous driving;6

(f)driving while suspended (third or subsequent) (x 3);7

(g)dishonestly using a vehicle;8

(h)unlawfully getting onto a motorbike;9

(i)without lawful authority having an offensive weapon in public (x 2);10

(j)carrying an imitation firearm;11

(k)failing to answer bail (x 3);12

1      NZ Police v Herk [2024] NZDC 25679.
2      Misuse of Drugs Act, s 6(1)(f); maximum penalty eight years’ imprisonment.
3      Section 7(1)(a) and subs (2); maximum penalty six months’ imprisonment or $1,000 fine.
4      Section 13(1)(a) and subs (3); maximum penalty one year imprisonment or $500 fine.
5      Section 7(1)(a) and subs (2); maximum penalty three months’ imprisonment or $500 fine.
6      Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or $4,500 fine.
7      Section 32(1)(c) and subs (4); maximum penalty two years’ imprisonment or $6,000 fine.
8      Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.
9      Section 226(2); maximum penalty two years’ imprisonment.
10     Section 202A(4)(a); maximum penalty three years’ imprisonment.
11     Arms Act 1983, s 46(1); maximum penalty one year imprisonment or $4,000 fine.
12     Bail Act 2000, s 38(b); maximum penalty one year imprisonment or $2,000 fine.

A spree of offending

[2] The offending commenced initially with three driving incidents over two weeks in December 2023, before further various offending on four separate occasions in March, April, June and July 2024.

[3] Over this latter period, having been granted bail on the charges he was then facing, Mr Herk also failed to answer his bail on three separate occasions.

[4] I adopt the outline of the offending as set out in the Judge’s sentencing remarks:13
…

[2] The factual circumstances of his alleged offending start off with the dangerous driving charge. The defendant was driving on State Highway 60 which is the coastal highway in the main arterial route between Richmond and Motueka. The posted speed limit was 80 kilometres per hour. The defendant was riding a motorbike and locked by police on radar at 173 kilometres per hour which is quite a bit over…

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 Herk v Police

Details

AGLC: Herk v Police [2025] NZHC 1183
Case: [2025] NZHC 1183
Decision Date: 15 May 2025

CaseChat Overview and Summary

This appeal concerns the sentence imposed on Rory Richard Herk by the District Court. Herk was sentenced to two years and nine months’ imprisonment for a range of charges, including possession for supply of cannabis, methamphetamine, and a drug utensil, dangerous driving, driving while suspended, dishonestly using a vehicle, unlawfully getting onto a motorbike, possessing an offensive weapon, carrying an imitation firearm, and failing to answer bail. Herk appeals the sentence as manifestly excessive. The appeal was filed out of time, but the Court granted an extension of time in the interests of justice. The appeal is dismissed. Herk was involved in a spree of offending over a period of seven months. He was caught driving at excessive speeds on three separate occasions while suspended from driving, and took a vehicle while the owner was in a bank. He was also found in possession of cannabis, methamphetamine, a drug utensil, and weapons on multiple occasions. The starting point for the possession of cannabis for supply was two years. The Judge applied uplifts for the disqualified driving charges, the unlawful taking of the vehicle, the weapons charges, and other charges. The Judge applied deductions for the guilty pleas and a previous head injury. The Judge declined to apply deductions for Herk’s addiction and rehabilitative prospects. The Court found that the starting point and uplifts were within range and the deductions were appropriate. The appeal is dismissed.

Orders