Kerr v Police - [2022] NZHC 190

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000054

[2022] NZHC 190

BETWEEN
NICHOLAS SCOTT KERR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2022

Appearances:

A de Jager for the Appellant C Power for the Respondent

Judgment:

16 February 2022

JUDGMENT OF NATION J

Introduction

[1] Mr Kerr was sentenced1 to three years and two months’ imprisonment by Judge Robinson on 14 charges of burglary,2 four charges of unlawfully being in a yard3 and one charge of peeping into a dwelling house.4 The Judge also declined an application for permanent name suppression.5 Mr Kerr appeals that decision.

Background

[2] Between July 2018 and November 2020 Mr Kerr burgled or was unlawfully in the yard of student flats in the Queen Street and Harbour Terrace areas of north

1      R v Kerr [2021] NZDC 24526.
2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3      Summary Offences Act 1981, s 29(1)(b); maximum penalty three months’ imprisonment.
4      Summary Offences Act, s 30(1)(a); maximum penalty $500 fine.
5      R v Kerr [2021] NZDC 24552.

KERR v POLICE [2022] NZHC 190 [16 February 2022]

Dunedin. He would wear dark, loose fitting clothing in addition to bandannas around his hair and mouth to conceal his identity. If confronted, he would immediately run from properties, jumping fences and using alleyways. Following a burglary, Mr Kerr would sell stolen property to associates or via a fictitious Facebook profile Samantha Peek.

[3] Mr Kerr appeared to target student flats, particularly those occupied by young women. On two occasions in 2018, Mr Kerr stole occupants’ underwear. On one occasion, in September 2020, Mr Kerr ran directly up to a female student’s window. She had just exited the shower and was only wearing a towel. On several occasions, he also cut holes in the victim’s bedroom curtains. As a result of these factors the sentencing Judge found a sexual element was an aggravating factor of Mr Kerr’s offending.6

District Court decision

[4] Judge Robinson carefully set out the principles governing a grant of name suppression.

[5] The principles that stood out as relevant in this case were that publication may help prevent Mr Kerr reoffending and it carries with it an element of personal deterrence.7 The Judge also referred to D v Police, where the Court of Appeal made a number of points relevant to a name suppression application where a risk of self-harm arises.8

[6] The primary argument in support of the application considered by the Judge was that Mr Kerr would self-harm if not granted name suppression and thereby publication would be likely to cause extreme hardship to him and/or endanger his safety.9 In support of that argument was a report from Dr Sellbom, a clinical psychologist. The Judge noted Dr Sellbom’s opinion that Mr Kerr would be of substantially higher risk for self-harm than the average offender, were he pictured and

6 R v Kerr, above n 1, at [100].
7…

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: [2022] NZHC 190
Decision Date: 16 February 2022

CaseChat Overview and Summary

Nicholas Scott Kerr appeals against the refusal by Judge Robinson to suppress his name. Kerr had been sentenced to three years and two months’ imprisonment by Judge Robinson on 14 charges of burglary, four charges of unlawfully being in a yard and one charge of peeping into a dwelling house. Kerr’s appeal was dismissed by the High Court. Kerr had argued that the Judge’s decision was plainly wrong and that the Judge failed to take into account the full extent of his mental health and, in doing so, overemphasised factors relating to public interest considerations. The High Court found there was no error in the Judge’s determination that publication of Kerr’s name would not likely make suicide or serious harm a real and appreciable possibility so as to establish the grounds for a suppression order. It also found that, had the threshold at the first stage been established, it would have exercised the Court’s discretion in the same way as the Judge. The High Court also found that there was no material error in the Judge not expressly referring to Corrections’ assessment as to there being a low to moderate risk of Kerr reoffending. The appeal against the refusal of an order for name suppression in the District Court was dismissed.

Orders