Kelly v Police - [2017] NZHC 2689

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2017-443-29 [2017] NZHC 2689

BETWEEN
RIKKI HOANI KELLY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 October 2017

Counsel:

R T Wilson for Appellant
J E Bourke for Crown

Judgment:

2 November 2017

JUDGMENT OF WILLIAMS J

[1] The appellant Rikki Hoani Kelly pleaded guilty to four burglary charges and one charge of theft from a car. The first occurred at 3.45am on 21 May this year.
Mr Kelly entered the unlocked premises of a local high school dormitory. There was no-one there at the time – the students were apparently elsewhere on the school grounds. He then stole items from five “pods” including a laptop, earphones, clothing, toiletries, a wallet and some shoes valued together at $4,715. All but $1,420 in value was recovered with the co-operation of the appellant.

[2] The next night Mr Kelly opened an unlocked roller door at commercial premises and stole promotional confectionary.

[3] The night after that at 10.45pm, Mr Kelly broke into other commercial premises stealing a hard drive and a USB stick. And a month later, on 26 June at
10.30am, he walked into a staff changing room at the Novotel Hotel in New Plymouth

KELLY v NEW ZEALAND POLICE [2017] NZHC 2689 [2 November 2017]

and took a sports bag containing clothes and car keys. He then used the car keys to gain entry to a car in the car park stealing two lighters and a torch.

[4] Mr Kelly is 27 years old, single and has no offending history. He is homeless and has suffered significant mental illness a matter to which I will return later.

[5] Mr Kelly appeals against his sentence.

District Court sentencing

[6] In the District Court at New Plymouth, Judge Barkle took the lead offence of the five offences as the dormitory burglary. He applied the leading decision in this area of Arahanga v R1 which adopted a descriptive rather than tariff range of between
18 and 30 months for residential burglaries. Aggravating features in the view of

Judge Barkle were:

(a) The hostel was home to young people and Arahanga therefore applied by close analogy.

(b) There was an ever-present risk of confrontation.

(c) The victim impact statements showed that the effects of the burglary on the students were significant.

(d) The value of the property was also relatively significant.

(e) Mr Kelly remained in the dormitory for at least 50 minutes collecting items for removal indicating a certain deliberateness and planning.

[7] Judge Barkle adopted a starting point of two years; six months above the floor in the Arahanga range. He then uplifted that starting point to take account of the other three burglaries and the theft from the car. He took the view that each of the three burglaries justified an 18 month starting point but on a totality basis he only uplifted
the starting point by another 12 months, leaving an overall starting point of three years.

1 Arahanga…

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.

Keep reading for free

Create a free CaseChat account to read Kelly v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2689
Decision Date: 2 November 2017

CaseChat Overview and Summary

Rikki Hoani Kelly appealed against his sentence for multiple burglaries and theft from a car. The District Court had sentenced him to 18 months' imprisonment after a starting point of three years, reduced by a 33% discount for good character, mental health issues, and remorse, and a 25% discount for an early guilty plea. Mr Kelly argued that the starting point was too high, that the victim impact statement was inadmissible, and that the uplift for additional charges was excessive. The Crown submitted that the starting point was appropriate, the impact statement was admissible, and the uplift was justified. The High Court found that the starting point was too high, that the victim impact statement could not be relied on, and that the uplift was excessive. The court substituted a sentence of 12 months' imprisonment.

The legal issues were whether the starting point, uplift, and discounts were appropriate. The High Court found that the starting point for the dormitory burglary should have been 18 months, not two years. The court found that an eight-month uplift for the additional charges was appropriate, not 12 months. The court found that a 50 or 60% discount for personal factors was possible, but the 33% discount was not an error of principle. The court found that the victim impact statement could not be relied on to find that Mr Kelly remained in the dormitory for nearly an hour. The court found that the District Court sentence was manifestly excessive and quashed it, substituting a sentence of 12 months' imprisonment.

Orders