Kelly v Police - [2013] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-087-259

CRI-2013-087-590 [2013] NZHC 1250

BETWEEN JACKIE NGATAI KELLY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 May 2013

Appearances:

RO Gowing for Appellant
LL Owen for Respondent

Judgment:

30 May 2013

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 30 May 2013 at 11:30 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

KELLY v NEW ZEALAND POLICE [2013] NZHC 1250 [30 May 2013]

[1] Jackie Ngatai Kelly appeals against an effective total end sentence of eight

months’ imprisonment imposed by Judge Rollo in the Whakatane District Court on

19 April 2013 in respect of four charges of theft, one of trespass and one of breach of a community work order. The issues I have to decide are whether:

(a) the Judge made a material error in receiving, and taking into account, a statement signed by the appellant which had been obtained from her by a police officer while the appellant was in custody and had been stood down for a probation report and assessment by a Corrections Department psychologist; and

(b)the sentence imposed by the Judge was, in any event, clearly excessive.

Result

[2] For the reasons given below, I have decided that:

(a) the provision to the Court of the report prepared by the police officer, without the consent of counsel for the defendant, was irregular but a well-intentioned error;

(b)in any event, the sentencing Judge was not materially influenced by the report to impose a sentence he would not have imposed if he had not read it;

(c) the Judge’s approach to determining the appropriate sentence did not follow a conventional path; but

(d) the sentence of eight months’ imprisonment, while stern and at the

upper end of the available range, was not clearly excessive; and

(e) the appeal should be dismissed.

[3] At first blush, a sentence of eight months’ imprisonment for offending which included three charges of theft of items valued at under $500 (for which the maximum penalty was one of three months’ imprisonment on each charge), and one charge of theft of items valued at just over $500, seems inordinately high. To understand why the sentence was considered by an experienced District Court Judge to be justified, it is necessary to appreciate the appellant’s offending history and the dates and circumstances of the offending which led to the sentences which are now challenged.

[4] By 20 November 2012, when she was then aged almost 28 years, the appellant had accumulated 23 previous convictions for shoplifting dating back
10 years. She also had convictions for burglary, receiving stolen property, serious drink-driving offending, minor drug offences and assault. There were convictions for numerous transport-related offences demonstrating a complete disregard by the appellant for regulations related to driving and vehicles. On occasions, the appellant had been prosecuted for breaching Court orders. Some of the more recent offending resulted in short sentences of two or three months’ imprisonment.

[5] On 21 November 2012,…

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: [2013] NZHC 1250
Decision Date: 30 May 2013

CaseChat Overview and Summary

In Jackie Ngatai Kelly's appeal against an eight-month imprisonment sentence imposed by the Whakatane District Court, the High Court examined whether the sentence was clearly excessive and whether the judge improperly considered a police officer's report. The appellant, who had accumulated 23 shoplifting convictions over 10 years and had a history of breaching court orders, was sentenced for multiple theft charges, one of trespass, and one of breach of a community work order. The High Court determined that while the police report's inclusion in the court file was irregular, it did not materially influence the judge's decision. The judge's sentencing approach, though unconventional, aimed to deter the appellant's persistent offending. The court concluded that the sentence, though stern, was not clearly excessive, considering the appellant's extensive criminal history and the recidivist nature of her thefts. The appeal was dismissed.

Orders