Kerr v Police - [2017] NZHC 1830

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2017-406-8 [2017] NZHC 1830

BETWEEN
JOANNE LEE KERR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 August 2017

Counsel:

R M Gould for Appellant
A B Richards for Respondent

Judgment:

3 August 2017

JUDGMENT OF THOMAS J

Introduction

[1] Ms Kerr pleaded guilty to charges of blackmail,1 wilful damage2 and intimidation.3 She was sentenced on 8 May 2017 to 12 months’ imprisonment by Judge Russell in the Blenheim District Court.4

[2] Ms Kerr applies for leave to appeal against that sentence on the basis the Judge erred in failing to consider sentencing options other than home detention and imposing imprisonment in the absence of a suitable address. A sentence of intensive supervision combined with community work is said to be appropriate. A secondary
ground of appeal is that the Judge erred in declining to adjourn sentencing.

1      Crimes Act 1961, s 237(1) and 238, maximum penalty 14 years’ imprisonment.
2      Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment/$2,000
fine.
3      Section 21(1)(a), maximum penalty three months’ imprisonment/$2,000 fine.
4      Police v Kerr [2017] NZDC 9437.

KERR v NEW ZEALAND POLICE [2017] NZHC 1830 [3 August 2017]

Background

Wilful damage and intimidation

[3] At about 9.00 pm on 17 November 2016, police were called to the address of the male victim where Ms Kerr was boarding. The relationship between the two had broken down and the police were called to mediate the situation. When matters were concluded Ms Kerr refused a ride from the police and was left on the street. At about 9.25 pm she picked up rocks and began throwing them at the victim’s house. At the same time she was yelling profanities at him and threatened to come back with friends and burn his house down. One of the stones went through a lounge window facing the street. In explanation, Ms Kerr said she never intended to break the window and was aiming for the roof.

Blackmail

[4] Between August 2016 and mid December 2016, the victim of the blackmail

charge was a client of Ms Kerr’s.

[5] On 10 December 2016, Ms Kerr sent the victim a text message asking for money for a prescription. The victim declined, explaining he had no money. Over the following days Ms Kerr requested more money and he gave her $220. During the following week, Ms Kerr continued to text the victim for more money.

[6] On 21 December 2016, the victim offered Ms Kerr $120 not to contact him again. Ms Kerr agreed and the money was transferred. After receiving the $120, Ms Kerr sent a text message to the victim stating that, if he wanted to get rid of her for good, he would have to deposit a further $100 into her bank account. When he declined, Ms Kerr increased the demand to $200 and threatened to go to the police and make a rape allegation against him. Ms Kerr said she would spread all around town…

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: [2017] NZHC 1830
Decision Date: 3 August 2017

CaseChat Overview and Summary

Ms Kerr appeals against her sentence of 12 months’ imprisonment for blackmail, wilful damage, and intimidation. Ms Kerr submits the District Court Judge erred in failing to consider sentencing options other than home detention and in imposing imprisonment in the absence of a suitable address. A sentence of intensive supervision combined with community work is said to be appropriate. A secondary ground of appeal is that the Judge erred in declining to adjourn sentencing. The appeal was filed out of time but leave was granted. The Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.

The appeal against sentence was dismissed. The sentencing Judge carefully considered the principles and purposes of the Sentencing Act and noted that he must sentence “on the basis that the least restrictive outcome is to be imposed”. In light of the concerns raised by the pre-sentence report and the proposed home detention address, the Judge appropriately reached the conclusion that home detention was not, at the time of sentencing, an available option. The Judge was not required expressly to rule out any lower level sentence on the sentencing hierarchy. He did not err in failing to impose a lower level community based sentence in the circumstances of this case. The final sentence of 12 months’ imprisonment was entirely appropriate for three principal reasons. First, the offending was sufficiently serious to attract a sentence of imprisonment. Secondly, the Judge was correct to note Ms Kerr’s previous dishonesty convictions were a concerning factor to take into account. Thirdly, Ms Kerr’s offending occurred while subject to an intensive supervision sentence. She had also breached conditions of community based sentences and release conditions on three previous occasions. It was therefore unsurprising the Judge ruled out a community based sentence when Ms Kerr had a poor history of compliance. Ms Kerr’s reliance on R v Rawiri does not assist her appeal. The circumstances of that case differ and the need for rehabilitation and its connection to the offending at hand was particularly strong in that case. Finally, there was no error in the Judge declining another adjournment. Ms Kerr’s proper recourse was under s 80I of the Sentencing Act and she was granted leave to apply at a later date to substitute her sentence.

The appeal is dismissed.

Orders