Kelly v Police - [2016] NZHC 2233

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000079 [2016] NZHC 2233

BETWEEN
SARAH LOUISE KELLY

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI-2016-409-000080

BETWEEN SARAH LOUISE KELLY Appellant

ANDTHE QUEEN Respondent

Hearing: 20 September 2016

Appearances:

P N Allan for Appellant
D Elsmore and E Henderson for Respondent

Judgment:

20 September 2016

ORAL JUDGMENT OF GENDALL J

Introduction

[1]      The appellant, Ms Sarah Kelly, appeals against a sentence of two years and one month’s imprisonment imposed by Judge Kellar in the District Court on 22 July
2016.The sentence relates to the following convictions: (a)   Two counts of theft under $500;
(b)      One count of robbery;

(c) One count of common assault; and

KELLY v NEW ZEALAND POLICE [2016] NZHC 2233 [20 September 2016]

(d) One count of assault with a weapon.

[2] Ms Kelly pleaded guilty after a sentence indication. She maintains now however that the sentencing Judge erred in not imposing that sentence of home detention. In the alternative, in her Notice of Appeal Ms Kelly appeals her sentence on the ground that the sentence imposed by Judge Kellar in the District Court was manifestly excessive.

Background

[3] Turning to the background of this matter, the offending was against two victims on separate occasions. The first set of offending was against Victim A, a man Ms Kelly met through an internet dating site. Ms Kelly and Victim A came up with an arrangement in which Victim A would pay Ms Kelly for sex. Around 18 July
2014, Victim A received a text message from Ms Kelly asking if she could move in with him. He replied that she could and she moved in that evening.

[4] A few days later, on 21 July 2014, Victim A purchased a pair of DC shoes online and they were delivered to his residence. Ms Kelly intercepted those shoes and subsequently gave them to a friend of hers.

[5] Later, on 9 August 2014, it appears Victim A could not find a hoodie he owned. Ms Kelly had taken the hoodie and subsequently gave it to another friend. Victim A contacted Ms Kelly a number of times by text message with regard to the missing hoodie, but Ms Kelly denied taking it.

[6] The communication resulted in Ms Kelly deciding to move out of the address. However, certain items of her property and her dog remained there. Victim A and Ms Kelly exchanged text messages on 10 and 11 August 2014 to arrange uplifting of this property.

[7] After 2 days, Ms Kelly had not collected the property so Victim A placed it in rubbish bags and put it outside. He sent a message to Ms Kelly informing her of this. She subsequently uplifted the items and then sent text messages to Victim A complaining of damage to her computer tablet.

[8] On 16 August 2014, Ms Kelly demanded payment for the damage to the tablet but Victim A said that he was not responsible for that damage.

[9] Under the circumstances…

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: [2016] NZHC 2233
Decision Date: 20 September 2016

CaseChat Overview and Summary

In this case, Sarah Louise Kelly appeals against a two-year-and-one-month imprisonment sentence imposed by Judge Kellar in the District Court. The sentence relates to various charges, including theft, robbery, common assault, and assault with a weapon. Ms Kelly argues that Judge Kellar erred in not imposing a sentence of home detention and, alternatively, that the sentence was manifestly excessive.

The legal issues in this case include whether Judge Kellar departed from his sentence indication, and if the sentence imposed was manifestly excessive. The court had to determine if Judge Kellar's sentencing was beyond Ms Kelly's expectation as a result of the sentence indication process and if the sentence imposed was appropriate for the crimes committed.

The High Court found that Judge Kellar did not depart from his sentence indication, as the indication only referred to the charges against Victim A, and Judge Kellar had expressly noted that the later convictions would change the length but not the type of sentence. Additionally, the court found that the sentence of two years and one month's imprisonment was appropriate for the crimes committed, taking into account the factors such as multiple offenders, bullying or menacing conduct, physical enforcement, detention, and premeditation.

The appeal was dismissed, and the sentence imposed by Judge Kellar in the District Court was upheld.

Orders