Kerr v R - [2017] NZCA 498

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/2017
[2017] NZCA 498

BETWEEN	CLAYTON KERR Appellant
AND	THE QUEEN Respondent

CA185/2017
BETWEEN	WAYNE JONES Appellant
AND	THE QUEEN Respondent

Hearing:	5 September 2017
Court:	French, Williams and Woolford JJ
Counsel:	H B Leabourn for Appellant in CA49/2017 W T Nabney for Appellant in CA185/2017 S K Barr for Respondent
Judgment:	2 November 2017 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal by Mr Jones against conviction is dismissed.
BThe appeals by Mr Kerr and Mr Jones against sentence are allowed.
CMr Kerr’s sentence of 11 years and six months’ imprisonment is quashed. Concurrent sentences of nine years and two months’ imprisonment for aggravated robbery, three months’ imprisonment for robbery and six months’ imprisonment for receiving are imposed. The other aspects of the sentence are confirmed.
DMr Jones’ sentence of 10 years’ imprisonment is quashed. A sentence of eight years and six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

Introduction

Following a jury trial before Judge Harding of four defendants in the Tauranga District Court between 3 and 10 October 2016, the first appellant, Clayton Kerr, was convicted of two charges of aggravated robbery,[1] one charge of robbery,[2] and one charge of receiving.[3] The second appellant, Wayne Jones, was convicted of the same two charges of aggravated robbery.[4] Judge Harding sentenced Mr Kerr to 11 years and six months’ imprisonment,[5] while he sentenced Mr Jones to 10 years’ imprisonment.[6] Mr Kerr now appeals against sentence only, while Mr Jones appeals against both conviction and sentence.

Facts

[1]Crimes Act 1961, s 235(b).

[2]Section 234(1).

[3]Section 246(1).

[4]Section 235(b).

[5]R v Kerr [2017] NZDC 1041 at [20].

[6]R v Jones [2017] NZDC 3662 at [12].

The aggravated robbery charges related to two complainants who were present at a residential property in Tauranga, on the evening of 27 May 2015, when Mr Kerr arrived with Mr Jones. Both appellants entered the property. Two other persons initially remained in a car outside the property. On entry, Mr Kerr enquired about swapping a laptop for money or half a gram of methamphetamine. He was advised by the householder (PT) that he had no methamphetamine, but his wife (CT) had money and she would be returning home shortly from shopping. Mr Kerr and Mr Jones said they would return in an hour and left the property.
When the two returned half an hour later, Mr Kerr became agitated that CT had still not returned.[7] He pulled out a machete, commenting on its sharpness. Mr Kerr then told Mr Jones to get the other two men who had remained in the car outside the property. When the three of them returned, the other two men had scarves around their lower faces. Mr Kerr instructed them to grab everything and load up the car.
[7]The sequence of subsequent events differs somewhat in the different witness accounts.
When Mr Kerr saw a guest (KK) in a bedroom at the property…

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 Kerr v R

Details

AGLC: Kerr v The Queen [2017] NZCA 498
Case: [2017] NZCA 498
Decision Date: 2 November 2017

CaseChat Overview and Summary

The appellants, Clayton Kerr and Wayne Jones, were convicted of multiple charges of aggravated robbery, robbery, and receiving. Kerr and Jones appealed both their convictions and their sentences. The appeal against conviction was brought by Jones, who claimed a miscarriage of justice had occurred due to the admission of evidence from three hostile witnesses. The appeal against sentence was brought by both appellants, who argued that their sentences were manifestly excessive. The Court of Appeal found that the admission of evidence from the hostile witnesses was not unfairly prejudicial to Jones' defence and dismissed the appeal against conviction. Regarding the sentences, the Court of Appeal found that the starting points set by the District Court were too high and did not accurately reflect the level of premeditation and violence involved in the offending. The Court of Appeal quashed the original sentences and imposed new sentences of nine years and two months' imprisonment for Kerr, and eight years and six months' imprisonment for Jones.

Orders