Keil v Police - [2020] NZHC 682

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-006

[2020] NZHC 682

BETWEEN
PAUL PHILLIP KEIL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 April 2020 (via telephone)

Counsel:

L P F Lafferty for appellant L M Marshall for respondent

Judgment:

2 April 2020

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Keil) was sentenced in the Napier District Court on 17 December 2019 on convictions for possession of methamphetamine for supply and common assault.1 District Court Judge Rea imposed a sentence of 23 months’ imprisonment on the methamphetamine conviction and a three month concurrent sentence on the assault conviction.

[2] Mr Keil has appealed the sentences on the basis that the District Court Judge erred by failing to consider the least restrictive outcome appropriate in the circumstances under s 8(g) of the Sentencing Act 2002, because there was no consideration of the alternative sentence of home detention.

1 Police v Keil [2019] NZDC 25610 at [7].

KEIL v POLICE [2020] NZHC 682 [2 April 2020]

Circumstances of the offending

[3] On 6 August 2019, after an altercation at another address with his ex-partner (the victim), Mr Keil drove to 3 Maxwell Place, Napier. Shortly after he arrived, the victim followed Mr Keil to 2 Maxwell Place in her vehicle, where both parties continued to argue. The victim then drove her vehicle at Mr Keil. Mr Keil picked up a large rock that was nearby and threw it at the vehicle’s windscreen, causing the windscreen to shatter. Mr Keil then dragged the victim out of her car and punched her to the side of the head, causing her to fall to the ground. Mr Keil continued to abuse the victim and argue with her. The Police arrived a short time later and subsequently arrested Mr Keil. In the course of his arrest, Mr Keil was searched. A black pouch containing 18.5 grams of methamphetamine was located in the pocket of his shorts. A set of electronic scales and $362 in cash were also located.

The sentencing analysis

[4] The District Court Judge treated Mr Keil as a street level methamphetamine dealer, and assessed him as a lesser offender within this category. He set the starting point for the methamphetamine conviction at two and a half years’ imprisonment.2 An uplift of three months was imposed for the assault, leading to a total starting point of two years and nine months’ imprisonment.3

[5] The Judge then considered several mitigating factors. A helpful cultural report obtained pursuant to s 27 of the Sentencing Act, as well as evidence that Mr Keil had struggled with a methamphetamine addiction for a significant period of time, warranted a discount of 15 per cent.4 A further discount of 20 per cent was given for relatively early guilty pleas, leading to an end sentence of 23 months’ imprisonment for the methamphetamine conviction, and three months’ concurrent imprisonment for the assault charge.5 The Judge also imposed special release conditions…

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 Keil v Police

Details

AGLC: Keil v Police [2020] NZHC 682
Case: [2020] NZHC 682
Decision Date: 2 April 2020

CaseChat Overview and Summary

The appellant, Mr Keil, appealed against his sentence imposed by the District Court Judge on two counts of possession of methamphetamine for supply and common assault. The appeal was heard by the High Court, and the Court was required to determine whether the District Court Judge erred in failing to consider the alternative sentence of home detention. The appeal was brought under section 250 of the Criminal Procedure Act 2011. The central issue was whether the District Court Judge was required to consider home detention as a less restrictive sentence given the end sentence of a short term of imprisonment. The Court found that there was no presumption for or against the commutation of a short-term sentence of imprisonment to home detention. The Court held that the decision about whether home detention will meet the objectives of deterrence and denunciation in a particular case is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. The Court found that the Judge had substantial information about Mr Keil on which to assess his likely compliance with a sentence of home detention and his rehabilitative needs. The Court concluded that the District Court Judge did not err in failing to consider the alternative sentence of home detention. The appeal was dismissed.

In summary, the Court found that the District Court Judge did not err in failing to consider the alternative sentence of home detention given the end sentence of a short term of imprisonment. The Court held that the decision about whether home detention will meet the objectives of deterrence and denunciation in a particular case is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. The Court found that the Judge had substantial information about Mr Keil on which to assess his likely compliance with a sentence of home detention and his rehabilitative needs. The Court concluded that the District Court Judge did not err in failing to consider the alternative sentence of home detention. The appeal was dismissed.

Orders