Kerr v Police - [2023] NZHC 2235

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-131

[2023] NZHC 2235

BETWEEN
REUBEN KERR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 August 2023

Counsel:

R J T George for Appellant L Fiennes for Crown

Judgment:

18 August 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 9 June 2022, Reuben Kerr (the appellant) was sentenced by Judge Couch in the Christchurch District Court to four months’ imprisonment, on two charges to which he pleaded guilty.1

These charges were:

(a)assault;2 and

(b)resisting a corrections officer.3

1      Police v Kerr [2023] NZDC 11677.
2      Crimes Act 1961, s 196; maximum penalty one years’ imprisonment.
3      Summary Offences Act 1981, s 23; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

KERR v NEW ZEALAND POLICE [2023] NZHC 2235 [18 August 2023]

[3] Mr Kerr appeals on the ground that the sentence imposed was manifestly excessive, and that there was an error in the sentence imposed. Mr Kerr submits that the Judge failed to properly account for his personal mitigating circumstances.

[4] The police oppose the appeal, submitting that the sentence was in all respects within range and that the appeal should be dismissed.

Background

The offending

[5] Mr Kerr is a sentenced prisoner in the Intervention Support Unit at Christchurch Men’s Prison. On 19 August 2022, following a phone call to his lawyer, Mr Kerr became aggravated and refused to go back to his cell. He was aggressive towards Corrections staff, who attempted to move him to his cell and restrained him. As Mr Kerr was placed in his cell, while restrained, he turned quickly and threw a number of punches as Corrections staff, hitting the complainant, a Corrections officer, in the face. Pepper spray was then used on Mr Kerr to stop his resistance. The complainant received some bruising to the head, and a chipped tooth.

Pre-sentence report

[6] Mr Kerr is 24 years old and of Pākehā descent. Mr Kerr reported that immediately prior to the offending he had an upsetting conversation with his lawyer, that he is regretful, and that he is now working on his violence.

[7] Mr Kerr has a criminal history which began in 2018 and involves mostly violent offending, including six assault convictions and one of injuring with intent to injure. On this basis, the pre-sentence report-writer assessed Mr Kerr as being at a high-risk of reoffending, particularly while he is in custody, and specifically against Corrections officers. Mr Kerr has a history of offending against Corrections staff. The report-writer recommends a sentence of imprisonment.

[8] Mr Kerr was raised on the West Coast of the South Island by his mother and stepfather. He has limited contact with his biological father. He reported experiencing physical abuse from his stepfather, and received limited education due to his

aggressive behaviour at school, as well as learning difficulties. Mr Kerr started experiencing epileptic seizures when he was four and a half years old, from which he…

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.

Keep reading for free

Create a free CaseChat account to read Kerr v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 2235
Decision Date: 18 August 2023

CaseChat Overview and Summary

The case of Kerr v Police involved an appeal by Reuben Kerr against a sentence of four months’ imprisonment imposed by the Christchurch District Court. Kerr had pleaded guilty to charges of assault and resisting a corrections officer. The primary issue before the court was whether the sentence was manifestly excessive due to the District Court's failure to properly account for Kerr’s mitigating circumstances. The High Court found that the District Court had indeed erred in not applying appropriate discounts for Kerr’s mental impairment, personal deprivation, and youth. The court held that these factors warranted a 25% discount for mental impairment, 10% for personal deprivation, and 5% for youth, totaling at least a 25% discount. Given the relatively short sentence, the court concluded that the failure to apply these discounts resulted in a sentence that was beyond the appropriate range, thereby being manifestly excessive. The court allowed the appeal, reducing the sentence to two and a half months’ imprisonment, cumulative on Kerr’s current sentence, while maintaining the concurrent two-month sentence for the resisting charge.

Orders