Kee v The King - [2023] NZHC 1133

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-18

CRI-2023-412-19 [2023] NZHC 1133

BETWEEN
MATTHEW EDWARD KEE

Appellant

AND

THE KING

Respondent

CRI-2023-412-20

BETWEEN

MATTHEW EDWARD KEE
Appellant

AND

DEPARTMENT OF CORRECTIONS

First Respondent

NEW ZEALAND POLICE

Second Respondent

Hearing: 3 May 2023

Appearances:

P B Redpath for Appellant

M E A Brosnan for Respondents

Judgment:

11 May 2023

JUDGMENT OF EATON J

This judgment was delivered by me on 11 May 2023 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

KEE v R [2023] NZHC 1133 [11 May 2023]

Introduction

[1]On 22 February 2023, Mr Kee appeared for sentencing on nine charges:

(a)possession of methamphetamine for supply;1

(b)possession of cannabis;2

(c)failing to carry out obligations in relation to a computer search;3

(d)supplying cannabis (representative);4

(e)selling cannabis (representative); 5

(f)offering to supply cannabis (representative);6

(g)breaching a protection order;7

(h)unlawful possession of a pistol;8 and

(i)unlawful possession of ammunition.9

[2] On the same date, he was resentenced on charges of possession of methamphetamine, LSD, cannabis oil and cannabis, two charges of unlawful possession of firearms, and a breach of a protection order.

[3]He was sentenced by Judge Large to 23 months’ imprisonment.10

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2      Misuse of Drugs Act, s 7(1)(a) and (2)(b); maximum penalty 3 months’ imprisonment or a fine not exceeding $500.
3      Search and Surveillance Act 2012, s 178; maximum penalty 3 months’ imprisonment.
4      Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
5      Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
6      Misuse of Drugs Act, s 6(1)(e) and (2)(c); maximum penalty 8 years’ imprisonment.
7      Family Violence Act 2018, s 112; maximum penalty 3 years’ imprisonment.
8      Arms Act 1983, s 50; maximum penalty 3 years’ imprisonment and/or a fine not exceeding $4,000.
9      Arms Act, s 22B; maximum penalty of a fine not exceeding $10,000.
10     R v Kee [2023] NZDC 3388.

[4] Mr Kee appeals this sentence on the grounds that the uplift for the cannabis dealing charges was excessive, greater discounts for personal mitigating factors were warranted, and a sentence of home detention was more appropriate.

Facts

[5]In May 2021, a temporary protection order was made against Mr Kee.

[6] The recent charges emerge from the execution by police of a warrant at a Cromwell address in June of 2021. A search of vehicles on the property, owned by Mr Kee, discovered a bag containing $8,610 in cash, point bags, scales, 5 g of methamphetamine (including the weight of the plastic bags in which the drugs were found), and 9 g of cannabis plant material.

[7] Mr Kee was arrested and refused to provide access to his cell phone when police requested it, despite being warned that doing so was an offence.

[8] Evidence retrieved from the cell phone demonstrated Mr Kee was supplying cannabis…

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 Kee v The King

Details

AGLC: Kee v The King [2023] NZHC 1133
Case: [2023] NZHC 1133
Decision Date: 11 May 2023

CaseChat Overview and Summary

The case of KEE v The King involved Matthew Edward Kee's appeal against the sentence imposed by the District Court. Kee was sentenced to 23 months' imprisonment for various charges, including possession of methamphetamine for supply, possession of cannabis, failing to carry out obligations in relation to a computer search, supplying and selling cannabis, offering to supply cannabis, breaching a protection order, and unlawful possession of a pistol and ammunition. Kee argued that the uplift for the cannabis dealing charges was excessive, greater discounts for personal mitigating factors were warranted, and a sentence of home detention was more appropriate.

The court considered the uplift for the cannabis offending, discounts provided, and whether leave should be granted to apply for home detention. The court found that a six-month uplift for the cannabis dealing offending was appropriate, rather than the 12-month uplift imposed by the District Court. The court also found that a 50% credit for personal factors was generous and appropriate, leading to a sentence of 16 months' imprisonment.

However, the court concluded that a sentence of home detention was not appropriate. The court found that Kee offended while serving a rehabilitative, community-based sentence for drug offending and the unlawful possession of firearms, which called for a sentence that focused on the sentencing principles of denunciation and deterrence. Additionally, the current offending involved class A drug dealing and the unlawful possession of a cut-down firearm, which gave rise to public safety considerations. The court also noted the presumption in favour of imprisonment for drug dealing offences.

The appeal was allowed, and the sentence of 23 months' imprisonment was substituted with a sentence of 16 months' imprisonment. The sentence of 12 months' imprisonment imposed on the charges of sale of cannabis, offering to supply cannabis, and possession of cannabis for supply was substituted with a sentence of six months' imprisonment to be served concurrently with the sentence of 16 months' imprisonment. The other sentences remained as imposed in the District Court, as did the release conditions and the term of those conditions.

Orders