Kent v Police - [2017] NZHC 1160

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2017-441-12 [2017] NZHC 1160

BETWEEN
CRAIG KENT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 May 2017

Appearances:

J S Jefferson for the Appellant
C R Stuart for the Respondent

Judgment:

30 May 2017

ORAL JUDGMENT OF MALLON J

Introduction

[1] Mr Kent was charged with burglary,1 receiving,2 possession of methamphetamine,3 possession of utensils for use of methamphetamine,4 and unlawful possession of an explosive.5 He pleaded guilty and was sentenced in the Napier District Court (Judge Thorburn) to 22 months imprisonment and ordered to pay reparation of $15,000.6

[2] He appeals against his sentence on the basis that the starting point was manifestly excessive and a sentence of home detention should have been imposed.

1      Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years imprisonment).
2      Sections 246 and 247(a) (maximum penalty seven years imprisonment).
3      Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty six months imprisonment or
$1,000 fine).
4      Sections 13(1)(a) and (3) (maximum penalty one year imprisonment or $500 fine).
5      Arms Act 1983, s 45(1) (maximum penalty four years imprisonment or $5,000 fine).
6      R v Kent [2017] NZDC 6410.

KENT v POLICE [2017] NZHC 1160 [30 May 2017]

Circumstances of the offending

[3] The lead offence was the burglary. On the night of 25 July 2015 Mr Kent and an associate, Mr Henderson, broke into the Hawke’s Bay Kart Club. The pair removed six “intrepid karts” owned by the club, and a kart belonging to a member of the club which had been stored there overnight in anticipation of a kart meeting which was to take place the following day. The two offenders had planned this burglary by text message and had discussed the best means of removal of the karts.

[4] Two of the intrepid karts were sold to associates. They were later recovered but in a damaged state. The remaining four intrepid karts and the member’s kart were not recovered. The total value of the items taken was approximately $53,000 (as described in the victim impact statement). Of this, $41,000 related to the member’s kart, $17,750 of which was recovered through insurance, leaving a shortfall of approximately $23,250. The intrepid karts were valued at $2,000 each.

[5] The offending impacted on the club and on the owner of the kart and his family. The teenage boy who raced the kart had been the leading contender for the club championship and was leading the grand prix points. The offending meant he missed some significant events and valuable track time, a setback he struggled to come back from for the rest of the season.

[6] The other charges arose when the police executed a search warrant on 1

October 2015 at Mr Kent’s address. In addition to finding items relating to the burglary (two two-way radios stolen from the club, cellphones with pictures of the stolen karts, and other items linking Mr Kent to the burglary), the police found:

(a) four small…

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 Kent v Police

Details

AGLC: Kent v Police [2017] NZHC 1160
Case: [2017] NZHC 1160
Decision Date: 30 May 2017

CaseChat Overview and Summary

Craig Kent appealed against his sentence for burglary, receiving, possession of methamphetamine, possession of utensils for use of methamphetamine, and unlawful possession of an explosive. He argued that the starting point for his sentence was manifestly excessive and that a sentence of home detention should have been imposed instead of imprisonment. The court considered the legal issues, including whether the starting point was appropriate and whether the decision to decline home detention was in error.

The court found that the starting point for Mr Kent's sentence was appropriate, as it was based on the burglary charge before considering Mr Kent's previous offending history. The court also found that the sentencing judge erred in declining home detention as an option because the decision should have been based on all the purposes and principles of sentencing relevant to the case. The court found that Mr Kent's personal circumstances favoured home detention, including his acceptance of his offending and expression of remorse, and his offer to pay reparation to the victims.

The appeal was allowed, and the sentence of 22 months imprisonment was quashed. A sentence of 10 months home detention was imposed, taking into account the time spent in custody. The result was to take effect as soon as the home detention arrangements reasonably could be made.

Orders