Kenny v Police - [2016] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-205 [2016] NZHC 1850

ROBERT JUNIOR KENNY

v

NEW ZEALAND POLICE

Hearing: 8 August 2016

Appearances:

R L Brown for the Appellant
C D Piho for the Respondent

Judgment:

10 August 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 10 August 2016 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Manukau. Kayes, Fletcher, Walker, Manukau.

KENNY v NEW ZEALAND POLICE [2016] NZHC 1850 [10 August 2016]

Introduction

[1] The appellant, Robert Kenny, was sentenced to eight months’ imprisonment on one charge of driving with excess blood alcohol (third or subsequent)1 and one charge of driving while disqualified (third or subsequent).2

[2] Mr Kenny has appealed against the sentence on the basis that the Judge: (a) adopted a starting point which was too high given the facts;
(b) gave insufficient weight to mitigating features; and

(c) erred in declining to impose a community-based sentence.

Factual background

[3] On 28 February 2016 at about 3.00am, Mr Kenny was driving a vehicle on State Highway 20 near Lambie Drive in Manukau. The road was wet and slippery from continual heavy rain that night. He lost control of his vehicle, crashing into the Armco barrier causing significant damage to both the vehicle and the barrier.

[4] Mr Kenny was taken to hospital. A blood test undertaken there showed that he had 155 milligrams of alcohol per 100 millilitres of blood.

[5] This was Mr Kenny’s fourth conviction on driving with excess breath or

blood alcohol charges, and his third for driving while disqualified.

[6] Mr Kenny pleaded guilty at his first appearance after receiving legal aid, on

16 May 2016.

1 Land Transport Act 1998, ss 56(2) and 56(4).
2 Land Transport Act 1998, ss 32(1)(a) and 32(4).

Pre-sentence report

[7] At the time of the report, Mr Kenny was a 29 year old who lived with his mother and two adult siblings, being the main financial provider for the family. He had been sentenced to community work and supervision for his previous most recent offending. The supervision sentence was to expire on 11 August 2016. He had completed his community work.

[8] The report writer assessed Mr Kenny’s risk of reoffending as medium due to his recidivist offending, saying the risk profile was likely to remain until he addressed his offending-related factors. His risk of harm was considered low, given the lack of violence related offences.

[9] The report noted that, despite recently completing an alcohol and drug programme, he reoffended while on supervision. The report said Mr Kenny completed the programme in May 2016, some months after the most recent incident of offending. The report identified other programmes Mr Kenny could attend.

[10] Mr Kenny worked full-time in a factory, rostered on night and day shifts, which the report-writer noted could interfere with imposing a curfew.

[11] The report stated that Mr Kenny readily accepted responsibility for his actions…

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.

Continue reading Kenny v Police

Details

AGLC: Kenny v Police [2016] NZHC 1850
Case: [2016] NZHC 1850
Decision Date: 10 August 2016

CaseChat Overview and Summary

The appellant, Robert Kenny, appealed against his sentence of eight months’ imprisonment imposed for one charge of driving with excess blood alcohol (third or subsequent) and one charge of driving while disqualified (third or subsequent). Mr Kenny argued that the Judge: (a) adopted a starting point which was too high; (b) gave insufficient weight to mitigating features; and (c) erred in declining to impose a community-based sentence. The High Court allowed the appeal and substituted a sentence of 10 weeks’ home detention with special conditions and 150 hours of community work.

The Court noted that the starting point of six months for the charge of driving with excess blood alcohol was within range once the particular aggravating factors of the offending were taken into account. However, the Court found that the Judge erred by uplifting the starting point by two months for Mr Kenny’s previous like offending, given that the Judge had already taken account of Mr Kenny’s bad driving history when he identified it as an aggravating factor. The Court was also satisfied that the Judge did not give sufficient weight to the mitigating features personal to Mr Kenny, particularly the fact that he had no previous sentences of imprisonment, or community or home detention. Finally, the Court found that the Judge erred in not regarding home detention as a real alternative to imprisonment. The Judge did not appear to consider that home detention was a real and genuine alternative to imprisonment. The Court substituted a sentence of 10 weeks’ home detention with special conditions and 150 hours of community work.

Orders