Kelly v Police - [2014] NZHC 3168

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000349 [2014] NZHC 3168

MICHAEL RAYMOND FRANCIS KELLY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 1 December 2014

Appearances:

Martin Hislop and Aieyah Shendi for the Appellant
Kylie Cooper for the Respondent

Judgment:

11 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 11 December 2014 at 12:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

KELLY v NEW ZEALAND POLICE [2014] NZHC 3168 [11 December 2014]

Introduction

[1] The appellant, Michael Raymond Francis Kelly, met a young woman, Ms W, online. After some weeks of correspondence she travelled to Auckland to meet him for the weekend.

[2] In preparation for going out later that evening Ms W took a shower. Unbeknownst to her Mr Kelly had taped a small pen camera to the bathroom wall so that its coverage included the area of the shower. He activated the camera before she entered the bathroom. The camera recorded her showering.

[3] Mr Kelly’s flatmates discovered the pen camera on the wall before he had an opportunity to retrieve it. They examined the camera and located the images it had recorded. They referred it to the Police.

[4] The first Ms W knew of this was when the Police called her to tell her what had happened.

[5] Mr Kelly, in an attempt to avoid investigation and prosecution, convinced a friend to tell the Police that the recorded images were of her and that she had agreed to being recorded and did not wish to make a complaint against Mr Kelly. When the Police spoke to Mr Kelly he claimed the images were of his friend rather than someone else.

[6] It seems that this strategy initially worked. Mr Kelly was not arrested. However, after further enquiries which included the Police asking for and obtaining photographs of Ms W the correct position emerged and Mr Kelly was charged with both intentionally making an intimate video recording and wilfully attempting to obstruct the course of justice.

[7] Furthermore, no doubt as a result of discussions with Ms W, the Police discovered that over the weekend she had been with him Mr Kelly had driven his car. At the time he was a disqualified driver.

[8] Mr Kelly was charged with making an intimate visual recording, attempting to obstruct the course of justice and driving while disqualified.

[9] Following pleas of guilty he was sentenced on both charges to four months’ home detention with special conditions totalling eight months’ home detention. On the driving while disqualified charge he was sentenced to a total of 150 hours community work in lieu of a further disqualification.

[10] He appeals the sentence of eight months’ home detention on the grounds it is manifestly excessive.

Procedural history

[11] Given some of the issues which have emerged in this appeal it is helpful to review its procedural history.

[12] Mr Kelly first appeared in the District Court…

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: [2014] NZHC 3168
Decision Date: 11 December 2014

CaseChat Overview and Summary

Michael Raymond Francis Kelly appeals against his sentence of eight months' home detention on the grounds that it is manifestly excessive. He was convicted of making an intimate visual recording, attempting to obstruct the course of justice, and driving while disqualified. He claims the District Court erred in setting an overall starting point of 20 months' imprisonment, which he argues is manifestly excessive, and that the Judge failed to impose the least restrictive sentence available. The court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.

The court found the starting point for making an intimate visual recording and attempting to obstruct the course of justice was within the sentencing judge's discretion. After considering the totality of the offending, the court reduced the starting point to 20 months' imprisonment. The court further found the court was entitled to reduce the starting point to 18 months' imprisonment. The court was satisfied that the 20 per cent discount for the guilty plea was open to the sentencing judge. With a 20 per cent discount, the provisional end sentence is 14 months. The court found home detention to be appropriate. The court substituted a sentence of seven months' home detention. The court also found the order under s 94 of the Land Transport Act 1988 to be made without jurisdiction and substituted a fine of $350 and an order disqualifying Mr Kelly from holding or obtaining a driver's licence for six months effective from 14 October 2014.

The appeal is allowed. The sentence of eight months' home detention is quashed. A sentence of five months' home detention on the charge of making an intimate visual recording and two months' home detention on the charge of attempting to obstruct the course of justice is substituted. Those sentences are to be served cumulatively. The order under s 94 is vacated and substituted with a fine of $350 and an order disqualifying Mr Kelly from holding or obtaining a driver's licence for six months effective from 14 October 2014. The orders made in the District Court for destruction remain.

Orders