Kee v The King
[2025] NZHC 2478
•28 August 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-26 [2025] NZHC 2478
BETWEEN MATTHEW EDWARD KEE
Appellant
AND
THE KING
Respondent
Hearing: 25 August 2025 Appearances:
S A Saunderson-Warner for Appellant J C Collins for Respondent
Judgment:
28 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 28 August 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
KEE v R [2025] NZHC 2478 [28 August 2025]
Introduction
[1] Matthew Kee appeals the sentence of 33 months’ imprisonment imposed by Judge Turner on 27 March 2025 for the following charges:1
(a)unlawful possession of a firearm;2
(b)unlawful possession of ammunition;3
(c)offering to supply a class A drug, namely methamphetamine (x 2);4
(d)offering to supply a class A drug, namely methamphetamine (representative);5
(e)possession of offensive weapon (x 2);6
(f)possession of a pipe for drug consumption (x 3);7 and
(g)possession of a class C drug, namely cannabis.8
Facts
[2] Mr Kee had final protection orders made against him on 25 August 2021 and 9 December 2021. A standard condition of a protection order is that the respondent must not possess or have under their control any weapon, including a firearm.
[3] In early April 2024, police sought to arrest Mr Kee for breaching a non-association release condition in relation to an ex-partner. On the evening of
1 R v Kee [2025] NZDC 6938.
2 Arms Act 1983, s 45(1)—maximum penalty four years’ imprisonment or $5,000 fine.
3 Arms Act, s 22B—maximum penalty $10,000 fine.
4 Misuse of Drugs Act 1975, s 6(1)(c) and subs (2)—maximum penalty life imprisonment.
5 Section 6(1)(c) and subs (2)—maximum penalty life imprisonment.
6 Crimes Act 1961, s 202A(4)(a)—maximum penalty three years’ imprisonment. The Judge indicated these were representative charges but that is not reflected on the charging documents or criminal history.
7 Misuse of Drugs Act, s 13(1)(a) and subs (3)—maximum penalty one years’ imprisonment or $500 fine.
8 Misuse of Drugs Act, s 7(1)(a) and subs (2)(b)—maximum penalty three months’ imprisonment or $500 fine.
6 April, Mr Kee was stopped by a police traffic stop and placed under arrest. At Mr Kee’s request, police turned off and secured his vehicle. Police observed a wooden club between the driver’s seat and driver’s door panel and conducted a search of the vehicle.
[4] A second large wooden club was found in the rear footwell along with a 50 centimetre machete, and four different knives—two in easy reach of the driver. Police also located a glass methamphetamine pipe. Police found eight rounds of 30-30 centre fire ammunition in the glove box and two rounds of .22 calibre rimfire ammunition elsewhere in the vehicle. Police also located a bag which contained
$1,600 in cash, five cell phones and one of the rounds of .22 ammunition. Police found a 30-30 rifle wrapped in a towel in the left compartment of the ute tray and a zip lock bag containing 27 grams of cannabis plant in the right compartment. On the front passenger seat was a black box containing a glass methamphetamine pipe, several zip lock bags, a yellow straw for methamphetamine consumption and a set of electronic scales.
[5] Mr Kee was taken to a police station where 4.82 grams of cannabis plant was found on him, as well as a wooden utensil for cannabis consumption. Police requested Mr Kee’s PIN access for his cell phone which he refused. Police extracted data from one of the cell phones found in Mr Kee’s vehicle revealing methamphetamine drug dealing activity from 26 March to 6 April 2024 giving rise to the three charges of offering to supply methamphetamine.
[6] Mr Kee was remanded in custody until 7 May 2024 when he was released on EM bail to his parents’ address in Roxburgh. On 9 May, Mr Kee again breached his non-association release condition—it was later discovered he had sent messages to his ex-partner of a disturbing and controlling nature from 7 to 15 May. Mr Kee was remanded in custody on 20 May 2024.
District Court
Sentencing indication
[7] Mr Kee received a sentence indication from Judge Turner on 31 January on the 11 charges he was ultimately convicted on.9
[8] In fixing the starting point the Judge had regard to the statement by the Court of Appeal in Campbell v R that the possession of a single firearm with no mitigating circumstances generally calls for starting points between two to three years’ imprisonment.10 The Judge also referenced an earlier Court of Appeal decision, R v Richardson, which identified the “clear obligation to impose sentences” which condemn the unlawful possession of firearms.11 The Judge considered “the need to denounce and deter is greater now than it was in 2003”.12
[9] The Judge took the firearms charge as the lead charge. The Judge rejected the argument that Mr Kee had taken all his worldly possessions with him in the car (due to leaving his home) which meant the firearm and ammunition was not intimately connected with the drug charges. The Judge referred to the fact the firearm was “insecure, operable, and there was ammunition readily available for it”.13 He also accepted that Mr Kee was in possession of the firearm at a time he was actively carrying out drug dealing activities and, on the day he was arrested, he had made an offer to supply methamphetamine and arranged to meet the proposed buyer. The Judge considered Mr Kee has “a footprint for unlawful possession of weapons and drug dealing activities”.14
9 R v Kee DC Dunedin CRI-2024-012-623, 31 January 2025 (sentencing indication). Mr Kee faced 11 other charges which were dismissed pursuant to s 147 of the Criminal Procedure Act 2011 on this date.
10 R v Kee (sentencing indication), above n 9, at [30] citing Campbell v R [2022] NZCA 579.
11 R v Richardson CA 450/02, 25 March 2003 at [33].
12 R v Kee (sentencing indication), above n 9, at [32].
13 At [36].
14 At [37].
[10] The Judge set a starting point of two years and three months’ imprisonment, finding the firearms charge was aggravated by the connection with drug dealing15 and the possession of ammunition.16
[11] The Judge turned to consider the supplying methamphetamine charges which involved a total quantity of one and half grams. The Judge placed the offending in band 1 of Zhang v R17 and considered Mr Kee had a lesser role18 and applied a nine-month uplift for these charges.19 The Judge applied a three-month uplift for possession of the knives but refrained from applying an uplift for the drug utensil charges to account for totality.20
[12] This resulted in a starting point of 39 months’ imprisonment which the Judge considered proportionate to the offending.21
[13] The Judge considered a 15 per cent uplift for previous relevant convictions was appropriate and generous22 and that Mr Kee could be granted a 20 per cent deduction if a guilty plea were entered.23 This created an end sentence of three years and one month’s imprisonment with the Judge noting further deductions may be appropriate at sentencing once more information was before the court.24
[14] That day, following amendment of certain charges, Mr Kee pleaded guilty to the remaining charges on the basis of the sentencing indication.
Sentencing
[15] At sentencing, the Judge adopted the starting point set out in the sentencing indication.25 The Judge did not consider the seriousness of the charges was decreased by the fact Mr Kee had held a firearms licence for a number of years prior to the
15 Citing Ross v R [2024] NZHC 1060 at [23].
16 R v Kee (Sentencing Indication), above 9, at [42].
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648
18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
19 R v Kee (sentencing indication), above n 9, at [43].
20 At [44]–[46].
21 At [46].
22 Citing Farrell v R [2024] NZCA 482 at [15].
23 R v Kee (sentencing indication), above n 9, at [48].
24 At [50]–[51].
25 R v Kee, above n 1, at [19].
protection orders against him. The Judge referred to the fact Mr Kee had had firearms convictions since the imposition of the protection orders so knew possession was unlawful yet continued to possess firearms.26
[16] The Judge maintained the 15 per cent uplift for previous offending and 20 per cent deduction for pleading guilty.27
[17] The Judge rejected the submission that Mr Kee should receive a discrete five per cent deduction for remorse. The Judge took note of a letter Mr Kee had written to the court expressing remorse. However, he considered this had to be balanced against the pre-sentence report, dated 12 March 2025, in which the report writer recorded “an element of minimisation” and that Mr Kee “lacks insight into why carrying weapons without a licence and in the context of current protection orders is a serious offence”. The Judge did not consider this could be reconciled with the letter, and therefore declined to grant a deduction for remorse.28
[18] The Judge allowed a 10 per cent deduction for addiction and rehabilitative prospects. The Judge canvassed the various material before him regarding Mr Kee’s methamphetamine addiction and the help and programmes he had been accessing since his remand into custody. The Judge took note of previous rehabilitative opportunities provided to Mr Kee which he did not take advantage of, as well as two previous sentencings in 2023 where Mr Kee had received deductions of 22 and 15 per cent for addiction and rehabilitative prospects. The Judge noted these had:29
… not brought about a lasting change to your behaviour, leading me to consider that your prospects of rehabilitation at this point are poor. Accordingly, there is a heightened need to denounce and deter you due to your significantly reduced prospects of rehabilitation.
[19]The Judge nonetheless allowed a 10 per cent deduction.
26 At [24].
27 At [40] and [41].
28 At [45].
29 At [54].
[20] After a net deduction of 15 per cent was applied, the end sentence was one of 33 months’ imprisonment which was imposed on the unlawful possession of a firearm charge.
Principles on appeal
[21] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.30 As the Court of Appeal commented in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.31 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.32
Submissions
Appellant’s submissions
[22] Ms Saunderson-Warner, on behalf of Mr Kee, submits that the starting point was excessive and that the Judge applied an excessive uplift for Mr Kee’s prior convictions and applied insufficient credit for addiction and rehabilitative efforts. Ms Saunderson-Warner submits the appropriate end sentence is one of two years and two and a half months.
[23] In challenging the starting point of two years and three months’ imprisonment for the lead charge of possession of a firearm was manifestly excessive, she submits the firearm was wrapped up and not readily accessible (being in the tray of the ute), was not sawn-off or modified, and was not loaded. Further, the ammunition charge is punishable by fine only, which she submits renders it a not significantly aggravating feature of the firearm offending.
30 Criminal Procedure Act 2011, ss 250(2) and 250(3).
31 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
32 Ripia v R [2011] NZCA 101 at [15].
[24] Ms Saunderson-Warner acknowledges the Court of Appeal decision in Campbell v R but distinguishes it on the facts and submits there are many cases where starting points lower than two to three years’ imprisonment have been imposed on charges involving unlawful possession of firearms.
[25] Ms Saunderson-Warner submits the offending in Campbell was far more serious than Mr Kee’s. Mr Campbell was in possession of five firearms and ammunition, including one sawn-off rifle and four firearms which had been stolen three weeks ago in an aggravated burglary. The Court considered the sawn-off rifle as “particularly concerning … its sole utility is as a tool for criminogenic purposes”.33 The Court noted the two years and six months’ starting point was at the lower end considering the offending, but this was nonetheless imposed, sitting only three months’ higher than the starting point adopted for Mr Kee’s firearm charge.
[26] Ms Saunderson-Warner refers to the following summary of firearm cases as set out by Eaton J in McLaren v Police as supporting her submission as to starting point:34
[21]A number of cases involving the unlawful possession of a firearm were discussed in Ngawati v Police,35 where starting points of between 18 months and 2.5 years were adopted, subject to aggravating factors. I briefly summarise those cases:
(a)R v Richardson:36 two firearms at the defendant's property and a loaded shotgun in the defendant's car — two year starting point considered ‘merciful’ on appeal.
(b)Torea v R:37 pistol found under a cushion next to the defendant during a police call-out with a disengaged safety and three bullets loaded, with a gang element. Two years and six months starting point.
(c)Smith v Police:38 loaded pistol and loaded rifle found during a search warrant, 18 months' imprisonment.
33 Campbell v R, above n 10, at [23].
34 McLaren v Police [2025] NZHC 518.
35 Ngawati v Police [2022] NZHC 2156.
36 R v Richardson, above n 11.
37 Torea v R [2011] NZCA 96.
38 Smith v Police [2014] NZHC 2196.
(d)Pue v R:39 loaded revolver found under the defendant's car seat, 18 months' imprisonment.
(e)Chong v R:40 loaded pistol found in car of patched Mongols member, two years imprisonment.
(f)Gunbie v Police:41 loaded pistol and shotgun ammunition, starting point reduced to 18 months on appeal, as a distinction was drawn between possession of a loaded firearm in the home environment and possession of a loaded firearm in a vehicle, which was considered more serious.
(g)Herewini v R:42 sawn-off shotgun located under passenger seat when police pulled car over. Two years and six months upheld on appeal.”
[27] Ms Saunderson-Warner also cites to Joyce v Police where a 24-month starting point was adopted for unlawful possession of a firearm in a public space.43 Mr Joyce was driving when he was stopped by police. A shotgun was found in the front seat. It was not loaded. On appeal, Downs J held the starting point “appears generous”.44
[28] Ms Saunderson-Warner submits that since the firearm was unloaded with ammunition stored in a separate part of the vehicle, a starting point of 21 months’ imprisonment is in line with authorities. After the nine-months’ uplift for the methamphetamine charges is applied, the starting point for the firearm and methamphetamine charges becomes 30 months’ imprisonment.
[29] Ms Saunderson-Warner submits the appropriateness of 21 months’ imprisonment can be supported by treating the methamphetamine charges as the lead offences, and then uplifting for the firearms charge. If that were done she submits a starting point of 15-18 months’ imprisonment would be applied to the methamphetamine charges.45 She submits an uplift of 12 months is justified for the
39 Pue v R [2014] NZCA 273.
40 Chong v R [2022] NZHC 869.
41 Gunbie v Police [2019] NZHC 250.
42 Herewini v R [2014] NZHC 2396.
43 Joyce v Police [2022] NZHC 3277.
44 At [11].
45 Citing Zhang v R, above n 17; R v Cole [2022] NZHC 557; and Aitcheson v R [2019] NZHC 2858.
firearms offence.46 This leads to a combined starting point of 27 to 30 months which she submits reflects the appropriateness of 30 months as her primary submission.
[30] Once the three-month uplift for possession of the knives is added, Ms Saunderson-Warner submits the appropriate starting point is 33 months’ imprisonment, rather than the 39 months adopted by the Judge.
[31] Ms Sauderson-Warner disputes the 15 per cent uplift applied for Mr Kee’s prior convictions. Mr Kee’s four previous firearms-related charges arose on two previous occasions on 1 August 2020 and 1 June 2021. Mr Kee’s only other drug dealing offences were in 2021 for possession of methamphetamine for supply, supplying cannabis (x 2), and selling cannabis. She notes his other drug offences are not for drug-dealing. She submits Mr Kee’s history is not so extensive as to warrant a 15 per cent uplift, that it was excessive, and the appropriate uplift is one of 10 per cent.
[32] Ms Saunderson-Warner submits the Judge “double-counted” Mr Kee’s criminal history by applying an uplift as well as reducing the deduction for background factors and that 15 per cent was excessive in relation to the 10 per cent given for addiction.
[33] She refers to the Court of Appeal’s decision in Cooper v R where the Court substituted a 15 per cent deduction for background factors in place of the six per cent deduction the sentencing Judge had applied.47 The Court distinguished the facts from those in Carroll v Police48 and held the appellant’s allowance for background factors should not have been reduced to the extent it was and noted:49
… reducing the allowance for an offender’s personal circumstances, because those factors have played a role in prior offending, while imposing an uplift for previous convictions, has the appearance of a double penalty. In this case, the uplift of five per cent for Mr Cooper’s previous convictions offsets the six per cent allowance for his background factors, that allowance already having been reduced because of his previous convictions.
46 Citing Clarke v R [2024] NZCA 199; Harris v R [2021] NZCA 143; Joyce v R [2020] NZCA 124; Mills v R [2016] NZCA 245; Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 338; and Haggie v R [2011] NZCA 221.
47 Cooper v R [2025] NZCA 272.
48 Carroll v Police [2023] NZHC 3293.
49 Cooper v R, above n 47, at [33].
Respondent’s submissions
[34] Mr Collins, for the Crown, opposes the appeal on both grounds, submitting the starting point and overall deduction applied by the Judge were appropriate and the sentence was not manifestly excessive.
[35] Mr Collins submits, regarding the starting point for the firearm charge, that a lack of aggravating factors does not warrant a starting point as low as advocated for by Ms Saunderson-Warner. He emphasises the Court of Appeal’s observation in Campbell that “possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment”.50
[36] Mr Collins submits the location of firearms in vehicles can be an aggravating factor.51 He submits Joyce v Police52 can be distinguished in that the charge carried a maximum penalty of three years’ imprisonment versus the four-year maximum penalty Mr Kee faced. Mr Collins submits this Court has previously held a distinction in maximum penalties must be acknowledged by a differentiated sentence.53
[37] Mr Collins submits the correlation between firearms and drug-dealing is a serious aggravating factor which courts have held is a matter of particular public concern.54 Mr Collins submits the authorities remain applicable notwithstanding the firearms offending was taken as the lead charge rather than the drug-dealing offending. Mr Collins submits the 27-month starting point was within the available range.
[38] Mr Collins refers to Mr Kee’s previous sentence where Eaton J upheld the eight per cent uplift which had been adopted at sentencing for Mr Kee’s conviction history. The Judge stipulated:55
[43]The Judge applied an eight percent uplift for previous convictions. While Mr Kee has several previous convictions for drug possession,
50 Campbell v R, above n 10, at [18].
51 Citing McLaren v Police, above n 34, at [12(f)].
52 Joyce v Police, above n 43.
53 Citing Duell v Police [2025] NZHC 1280.
54 Citing R v Fonotia, above n 46, at [40]; and R v Tararo [2024] NZHC 415 at [15].
55 Kee v R [2023] NZHC 1133.
he has no previous convictions for drug dealing. He has not previously been sentenced to imprisonment of home detention. In my view, an uplift of eight per cent was therefore stern but must be assessed in light of the generous approach the Judge took in imposing only a three-month uplift in resentencing Mr Kee and in not imposing an uplift for Mr Kee having offended while on sentence.
[39] The 2021 offending occurred whilst Mr Kee was subject to a rehabilitative sentence. He then offended in a like manner in 2022 and was on release conditions for that offending when he committed the most recent bout of offending. Mr Collins submits this creates an overall picture where Mr Kee, for the last several years, has shown no regard for the sentences imposed on him and he has not been sufficiently deterred from continuing to commit serious and similar offending. Mr Kee submits these circumstances warrant a 15 per cent uplift.
[40] Mr Collins submits Mr Kee has previously enjoyed generous deductions for addiction.56 Mr Collins submits that, given the lack of new material before the Court for this offending, a ten percent deduction for addiction and background was warranted.
Analysis
Starting point
[41] I am not persuaded that the starting point adopted was outside the available range having regard to the Court of Appeal’s observation in Campbell and with reference to decided cases. Several of the cases Ms Saunderson-Williams relies on or refers to as suggesting a lower starting point should be adopted are described as “lenient” (Campbell v R),57 “merciful” (Richardson v R)58 and “generous” (Joyce v Police).59 In Joyce, Downs J briefly reviewed two other Court of Appeal decisions on sentencing for possession of firearms, in addition to Campbell v R, to reach the view that a two-year starting point for possession of an unloaded firearm along with ammunition appeared “generous”.60
56 Citing Kee v R, above n 55, at [46].
57 Campbell v R, above n 10 at [18]
58 Richardson v R, above n 11 at [34].
59 Joyce v Police, above n 43 at [11].
60 R v Fonotia, above n 46; and Torea v R, above n 37.
[42] Here, I take account of the Judge’s reasons for setting it at this point, which includes the possession of ammunition, including ammunition for that particular firearm, and the contemporaneous drug dealing activity. These were reasonably treated as aggravating factors of the offending, and I do not consider the starting point was outside the available range.
[43] Furthermore, I do not accept it is valid to cross check a sentence by taking the charge attracting a lesser sentence (here, supply of methamphetamine) and then uplifting it to reflect the charge which would otherwise attract the most serious sentence. Uplifts are necessarily tempered by the assumption the first charge is the most serious and imposes a significant level of penalty and so totality principles are engaged. That approach can be distorted in the defendant’s favour if a charge attracting a lesser sentence is used as the lead charge.
Uplifts and deductions
[44] I also do not consider the Judge erred in his approach to the uplift and deductions applied. The 15 per cent uplift, while at the higher end, is warranted in this context where Mr Kee has continued to offend in a like manner since 2020 and where an eight per cent uplift was upheld on appeal for his previous tranche of drug and firearms related offending. Not only were his most recent convictions in 2023 for the same type of offending, but this current offending occurred while Mr Kee was still subject to release conditions.
[45] Cooper v R (where a greater deduction for background factors was allowed on appeal) can be distinguished in that Mr Cooper’s relevant convictions occurred approximately five years before the offending which was the subject of the appeal.61 Further, Mr Cooper had taken significant steps to rehabilitate himself; he distanced himself from a gang, was trying to remain drug free and had expressed genuine remorse.62 Similar factors are not present in Mr Kee’s case. Although stern, the Judge did not err in considering a sizeable uplift was required to denounce and deter Mr Kee.
61 Cooper v R, above n 47, at [37].
62 At [34].
[46] In light of the factors just discussed, I am also not satisfied the Judge erred in applying a 10 per cent reduction for addiction and rehabilitation (when greater discounts had been afforded in the past), or in declining a discrete deduction for remorse. I accept Mr Kee’s offending is largely addiction driven, but the Judge was entitled to take a more jaundiced view of Mr Kee’s rehabilitative prospects than judges had when sentencing him previously, given his relatively quick return to such similar offending to his previous offending.
Manifestly excessive
[47] As a consequence, I do not consider the end sentence manifestly excessive. It is the inevitable consequence of Mr Kee’s recidivism.
Result
[48]The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin
Copy to:
S A Saunderson-Warner, Barrister, Dunedin
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