Kara-Newcombe v Police - [2018] NZHC 25

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000003 [2018] NZHC 25

BETWEEN
CLEVELAND KARA-NEWCOMBE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 January 2018 (via AVL at Wellington)

Counsel:

W R Hawkins for Appellant
C C Gullidge for Respondent

Judgment:

30 January 2018

JUDGMENT OF COLLINS J

Introduction

[1] Mr Kara-Newcombe appeals a sentence of 13 months’ imprisonment imposed by Judge Adeane in the Napier District Court on 14 December 2017.1

[2] The sentence in question was imposed after Mr Kara-Newcombe pleaded guilty to unlawfully getting into a motor vehicle.2 Initially, Mr Kara-Newcombe was charged with unlawfully taking a motor vehicle and burglary. On the morning of the scheduled trial before Judge Adeane the charges were amended to a single charge of unlawfully getting into a motor vehicle.

[3] Mr Kara-Newcombe was sentenced with Mr Waikato, who faced a charge of burglary in addition to unlawfully getting into the motor vehicle.

1 New Zealand Police v Waikato [2017] NZDC 28685.
2 Crimes Act 1961, s 226(2). Maximum penalty is two years’ imprisonment.

KARA-NEWCOMBE v NEW ZEALAND POLICE [2018] NZHC 25 [30 January 2018]

[4] Judge Adeane adopted a starting point of 12 months’ imprisonment for both offenders. He increased Mr Kara-Newcombe’s sentence by three months to take account of his history of dishonesty offending and then reduced the provisional sentence by two months to reflect Mr Kara-Newcombe’s guilty plea. Mr Waikato’s sentence was increased by three months to reflect the burglary charge and a further three months to reflect his previous convictions for dishonesty offending.

Background

[5] On 19 August 2017, Mr Kara-Newcombe and Mr Waikato were in a carpark near a bar in Napier. Mr Waikato entered the bar and stole the keys to an Audi vehicle from inside the victim’s bag. It is that conduct that formed the basis of the burglary charge against Mr Waikato. Mr Waikato and Mr Kara-Newcombe located the Audi in the carpark. They then drove off. They were stopped by the police some time later. They fled the scene but were soon apprehended and arrested.

Personal circumstances

[6] Mr Kara-Newcombe is a 19 year old beneficiary who has significant substance abuse problems. He is a daily user of methamphetamine and cannabis and has an entrenched affiliation to a gang. He has six previous convictions for burglary, two convictions for shoplifting, one conviction for theft, one conviction for theft from a car and 10 other convictions that primarily relate to breaching release conditions. He also has similar convictions in the Youth Court.

Starting point

[7] I am satisfied that the starting point of 12 months’ imprisonment for unlawfully getting into a motor vehicle was beyond the level that was appropriate in this case. As a consequence, the end sentence was manifestly excessive. The criteria in s 250 of the Criminal Procedure Act 2011 for allowing an appeal against sentence are therefore satisfied in this case.

[8] In reaching this conclusion I have examined a…

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.

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Details

Case: [2018] NZHC 25
Decision Date: 30 January 2018

CaseChat Overview and Summary

The High Court of New Zealand heard the appeal of Cleveland Kara-Newcombe against a sentence of 13 months’ imprisonment imposed by Judge Adeane in the Napier District Court on 14 December 2017. Kara-Newcombe pleaded guilty to unlawfully getting into a motor vehicle. The case was originally charged as unlawfully taking a motor vehicle and burglary, but on the morning of the scheduled trial, the charges were amended to a single charge of unlawfully getting into a motor vehicle. Kara-Newcombe was sentenced alongside Mr Waikato, who faced a charge of burglary in addition to unlawfully getting into the motor vehicle. The appeal was against the sentence imposed by Judge Adeane, who adopted a starting point of 12 months’ imprisonment for both offenders, increased Kara-Newcombe’s sentence by three months due to his history of dishonesty offending, and reduced the provisional sentence by two months for his guilty plea. Kara-Newcombe's sentence was increased by three months to reflect his previous convictions for dishonesty offending.

The legal issues the court was required to decide were whether the starting point of 12 months’ imprisonment was appropriate for the offence of unlawfully getting into a motor vehicle, and if the sentence imposed was manifestly excessive. The court examined several similar cases to determine the appropriate starting point. In cases like Mack v Police, Prasad v Police, and Rota v Police, the starting points were lower than the 12 months’ imprisonment imposed on Kara-Newcombe. The court found that the starting point of 12 months’ imprisonment was beyond the level that was appropriate in this case and that the end sentence was manifestly excessive.

The court's reasoning was that the starting point of 12 months’ imprisonment was well beyond the range normally adopted in cases of this kind, and a starting point of between six to eight months’ imprisonment would have been more appropriate for Kara-Newcombe. The appropriate starting point in this case was one of seven months’ imprisonment. The court found that it was appropriate to impose an uplift to reflect Kara-Newcombe’s previous convictions and the fact that he offended while subject to release conditions, but also appropriate that he receive a discount for his guilty plea. Both the uplift for previous convictions and the discount for the guilty plea should have been in the vicinity of 20 per cent, which cancels each other out.

The result of the appeal was that the sentence of 13 months’ imprisonment was quashed and substituted with a sentence of seven months’ imprisonment. The appeal against the sentence was allowed, and the sentence was reduced to reflect the appropriate starting point and the mitigating factors.

Orders