Kelly v Police - [2020] NZHC 972

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000009

[2020] NZHC 972

BETWEEN
SCOTT JAMES WREFORD KELLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2020-412-000010

BETWEEN

SCOTT JAMES WREFORD KELLY
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 May 2020

Appearances:

S A Saunderson-Warner for Appellant R P Bates for Respondent

Judgment:

12 May 2020

ORAL JUDGMENT OF GENDALL J

Introduction

[1] This is an appeal against sentence. On 17 April 2020 Judge Crosbie in the District Court at Dunedin sentenced the appellant Scott Kelly to 16 months’ imprisonment on a lead charge of wilfully attempting to defeat the course justice. He was also for sentence on a charge of transmitting radio waves without a licence or exemption and a charge of using interfering equipment that had been declared to be prohibited equipment. Finally, he was disqualified for a period of two years on charges

KELLY v NEW ZEALAND POLICE [2020] NZHC 972 [12 May 2020]

of dangerous driving and driving while suspended. Mr Kelly appeals his sentences of imprisonment and disqualification on the basis they are manifestly excessive.

Facts

[2] Turning now to the facts in this matter, on 29 October 2019 Mr Kelly was suspended from driving for a period of three months for excess demerit points. When asked by police if he understood the suspension, he told police, “I will continue to drive but I won’t be stopping for police for three months”.

[3] In the evening of 10 December 2019, a police constable was on duty as a police dog handler in the Otago Coastal Area. During the evening, Mr Kelly made various unauthorised radio transmissions on the police radio channel using a personal radio transmitter. The Constable recognised Mr Kelly’s voice due to past dealings with him. Mr Kelly deliberately jammed the police radio by continuing to comment on current police operational matters, hindering police in their communications. He continued to make personal comments on the radio directed at the particular constable over the course of the night, including “Fuck those Deltas” (referencing the police radio code for dog units), “Getting close to your house” and stating the Constable’s home address.

[4] At about 10.20 p.m. the Constable returned home and heard a vehicle speed past his house. He got into his patrol car to locate the vehicle. A short time later the Constable was dealing with a driver of a vehicle he had stopped on an unrelated matter, when the defendant made further comments on the police radio: “come and get me”, “those are my brake lights flashing”, “come and get me” and “Pop pop Nigga”.

[5] The Constable then continued patrolling along Factory Road in Mosgiel. He observed Mr Kelly driving his vehicle towards him on the wrong side of the road, with no headlights on and travelling at approximately 90–100 km/h. The Constable was forced to take evasive action to avoid being crashed into. Mr Kelly swerved at the last minute to avoid impact.

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: [2020] NZHC 972
Decision Date: 12 May 2020

CaseChat Overview and Summary

The appellant, Scott Kelly, appeals against his sentence for wilfully attempting to defeat the course of justice, transmitting radio waves without a licence or exemption, using interfering equipment that had been declared to be prohibited equipment, dangerous driving, and driving while suspended. He contends that the sentences of imprisonment and disqualification imposed on him were manifestly excessive. The District Court Judge had imposed a sentence of 16 months’ imprisonment and disqualified him from driving for a period of two years and six months. The appeal raises issues concerning the relevance of certain facts to the charge of wilfully attempting to defeat the course of justice, the starting point for the lead charge, the discount for the appellant’s guilty pleas, and the appropriateness of the period of disqualification.

The Court found that the District Court erred in considering the appellant’s knowledge and use of the radio transmissions as relevant to the charge of attempting to defeat the course of justice. The court found that the offending in this case was less serious than cases where convictions and sentences were entered against innocent people, and that a starting point of nine months was appropriate. The court found that the appellant’s personal circumstances and guilty pleas warranted a discount of four months, which brought the end sentence to one of 12 months. The court found that the period of disqualification from driving was excessive and should be reduced to 18 months.

The Court allowed the appeal and substituted sentences of 12 months’ imprisonment and 18 months’ disqualification from driving. The Court found that the appellant’s sentences of imprisonment and disqualification were manifestly excessive. The Court found that the appellant’s personal circumstances and guilty pleas warranted a discount of four months, which brought the end sentence to one of 12 months. The Court found that the period of disqualification from driving was excessive and should be reduced to 18 months.

Orders