Kershaw v Police

[2019] NZHC 379

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000117

[2019] NZHC 379

BETWEEN

KALWYN GEORGE KERSHAW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 February 2019
Appearances:	W Nabney for the Appellant E Collis for the Respondent
Judgment:	8 March 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 March 2019 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

William Nabney, Barrister, Tauranga Pollett Legal Ltd, Tauranga

KALWYN GEORGE KERSHAW v NEW ZEALAND POLICE [2019] NZHC 379 [8 March 2019]

Introduction

[1]                  Mr Kershaw was sentenced to four years, nine months’ imprisonment in the Tauranga District Court on 19 October 2018 in respect of the following charges:

(a)wounding with intent to injure (x 2);1

(b)unlawful possession of ammunition;2

(c)unlawful possession of a firearm;3

(d)possession of methamphetamine;4

(e)possession of methamphetamine utensils;5

(f)possession of a knife in a public place;6

(g)breach of Court release conditions;7

(h)common assault;8 and

(i)assaulting a prison officer.9

[2]Mr Kershaw now appeals his sentence to this Court.

1      Crimes Act 1961, s 188(2). Maximum penalty 7 years’ imprisonment.

2      Arms Act 1981, s 51. Maximum penalty 3 years’ imprisonment or a fine not exceeding $4,000.

3      Arms Act 1981, s 51. Maximum penalty 3 years’ imprisonment or a fine not exceeding $4,000.

4      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty 6 months’ imprisonment or a fine not exceeding $1,000.

5      Misuse of Drugs Act 1975, 13(1)(a) and (3). Maximum penalty 1 year’s imprisonment or a fine not exceeding $500.

6      Summary Offences Act 1981, s 13A. Maximum penalty 3 months’ imprisonment or a fine not exceeding $2,000.

7      Sentencing Act 2002, s 96(1). Maximum penalty 1 year’s imprisonment or a fine not exceeding

$1,000.

8      Crimes Act 1961, s 196. Maximum penalty 1 year’s imprisonment.

9      Summary Offences Act 1981, s 10. Maximum penalty 6 months’ imprisonment or a fine not exceeding $4,000.

[3]                  The grounds of appeal were that Judge Ingram adopted too high a starting point on the wounding charges and applied an excessive uplift on the assault charges, and as a result, the end sentence arrived at is manifestly excessive.

[4]                  In oral submissions, the second point has been abandoned, in my view correctly. Mr Nabney accepts that on a proper reading of the judgment, the start point on the assault charges is overall appropriate.

Background

[5]                  Mr Kershaw was released from Auckland Prison on 1 May 2018. He had been sentenced to 13-and-a-half months’ imprisonment on several charges, including methamphetamine offences. Included in his special conditions of release was an order not to possess or consume controlled drugs.   These conditions were to expire on    20 May 2019.

[6]                  In the early morning of 20 May 2018, Mr Kershaw was in a parking lot in Tauranga, together with an associate. The men began yelling gang slogans and confronted two victims, inciting them to fight. Mr Kershaw slashed one victim’s face with a knife, causing a cut on the victim’s jaw line that required seven stitches. He then stabbed the other victim’s left bicep  twice,  causing  two  wounds  requiring two stitches each.

[7]                  Mr Kershaw walked away from the carpark and got into a taxi. As he was walking away, he brandished a revolver he pulled from his pocket. He was arrested in the taxi shortly thereafter.

[8]When the Police searched Mr Kershaw pursuant to the arrest, they recovered

2.25 grams of methamphetamine, a glass pipe used to smoke the drug, and 33 rounds of .32 ammunition. The charge of breaching Court release conditions stems from his possession of the methamphetamine.

[9]                  The revolver was later recovered from the taxi. It was found to have been fully loaded, cocked, and readied to fire.

[10]              The drugs, arms, weapons, and wounding with intent charges relate to the   20 May 2018 incident.

[11]              The other charges stem from Mr Kershaw’s conduct while subsequently in custody at Waikeria Prison.

[12]              The first incident in custody occurred on 31 July 2018. While being escorted to a hearing with a Visiting Judge, Mr Kershaw threatened the prison staff responsible for the transfer, and refused to enter a holding cell. When prison officers attempted to restrain Mr Kershaw, he gouged at an officer’s eye. The attack caused a ruptured blood vessel in that eye and light bleeding from a gash to the officer’s cheek. This incident gave rise to the charge of common assault.

[13]              The second incident in custody occurred on 27 September 2018. Mr Kershaw was involved in a matter that required him to be transferred within the prison. While undergoing a strip search as part of the transfer, Mr Kershaw suddenly struck one of the prison officers involved in the search in the face with a closed fist. The blow concussed the officer. The charge of assaulting a prison officer relates to this incident.

District Court decision

[14]              Judge Ingram fixed the wounding with intent charges as the lead charges, and cited R v Nuku as the applicable tariff case.10

[15]              The Judge identified the attacks on the head, the use of a weapon, and this being gang-related offending as relevant aggravating factors.11 The level of harm involved was substantial, but the Judge accepted that the injuries were not life-threatening – despite Mr Kershaw’s use of a knife.

[16]              His Honour also noted that the offending took place within three weeks of  Mr Kershaw’s release from prison.

10     R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.

11     See R v Taueki [2005] 3 NZLR 372 (CA) at [31] for the relevant aggravating factors.

[17]              Judge Ingram observed that Mr Kershaw has a substantial record of prior offending, while noting that serious violence has not featured in that record in recent years. This, together with the other factors, led the Judge to consider promoting a sense of accountability, general and specific deterrence, rehabilitation, reintegration, and public protection to be the relevant principles and purposes of sentencing in this case.

[18]              On this basis, Judge Ingram assessed imprisonment as being the only appropriate penalty.

[19]              His Honour set the starting point for the wounding involving the slashing of the face as two-and-a-half-years, with an uplift for the stabbing (including an uplift for Mr Kershaw’s prior record) of twelve months, so the final starting point for the lead offending was three years, six months’ imprisonment. He then subtracted 25 per cent for the defendant’s guilty plea, coming to two years and eight months. He also ordered the defendant to pay $1,000 in reparation to the victims.

[20]              As noted earlier, Mr Kershaw challenges the sentence for the wounding charges. The balance of the sentence now is not, but I set it out briefly below.

[21]              Judge Ingram adopted a starting point of two years’ imprisonment in relation to the arms offences. With the  25  per  cent  discount,  this  came  to  18  months. His Honour imposed this cumulatively on the wounding charges. Mr Kershaw does not take issue with this sentence.

[22]              In relation to the assault and assault on a prison officer charges, Judge Ingram set starting points of six and three months respectively. He considered that, together, they were worth nine months cumulative on the other charges.  He then deducted  two months for the guilty plea. That came to seven months cumulative on the other charges. Mr Nabney now accepts that sentence.

[23]              Judge Ingram considered that the remaining charges paled in significance to those above. So, he imposed various sentences on those other charges to be served

concurrently with those above. Neither side takes issue with these sentences, so I do not discuss them further.

[24]              The Judge considered the totality of the sentence overall, but found that no totality adjustment was necessary.

[25]The final custodial sentence was four years and nine months’ imprisonment.

Approach on appeal

[26]              Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.12

[27]              In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.13 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.14

[28]              The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.15 The focus is on the end result rather than the process by which the sentence was reached.16

[29]              In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).17 In any other case, the Court must dismiss the appeal.18

Analysis

[30]              Counsel for the appellant, Mr Nabney, submits that the starting point for the two charges of wounding with intent to injure was too high.

12     Criminal Procedure Act 2011, s 250(2).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

14     Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

15     Tutakangahau v R, at [36].

16 At [36].

17 At [36].

18     Criminal Procedure Act 2011, s 250(3).

[31]              He argues that this offending falls within band two of Nuku, which provides for a starting point of up to three years’ imprisonment.

[32]The Court of Appeal in Nuku defined bands two and three as follows:19

Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[33]              Mr Nabney submits there are two aggravating factors present for the wounding charges: use of a weapon and attacking the head.

[34]              The respondent argues the starting point of three-and-a-half years was correct. Ms Collis points to two additional aggravating factors, the first being that this offending was gang-related. This was accepted by Judge Ingram. I also accept this is an additional aggravating factor.

[35]              The respondent submits that there is another aggravating factor, being the presence of an associate of Mr Kershaw, meaning this offending involved multiple attackers. Judge Ingram did not mention this as an aggravating factor. While the summary of facts does note there was another person present, it does not say the person was involved in the attack itself. Because of a lack of anything further, I do not accept this as an aggravating factor.

[36]              Mr Nabney also argued that I should take note of the Court of Appeal’s having adopted a starting point of two years, eight months’ imprisonment in Grimshaw-Jones v R.20 In that case, the defendant attacked two victims with a knife. He caused several severe lacerations on both victims, requiring numerous stitches which left severe scarring.

19     R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

20     Grimshaw-Jones v R [2010] NZCA 490.

[37]              Mr Nabney submits the offending in the present case is less serious than Grimshaw-Jones because the injuries are less serious, and thus the present starting point of three years, six months is too high. He suggests a starting point of two years and six months is more appropriate in this case.

[38]              The respondent argues the current offending is more serious than in Grimshaw-Jones because Grimshaw-Jones involved an element of  provocation,  (the victims had previously allegedly assaulted the defendant’s girlfriend) and also the offending was not gang-related.

[39]                The respondent also says, in oral submissions, (no point was made of this in written submissions) that Grimshaw-Jones cannot be relied upon as that decision preceded Nuku. They argue it would be decided differently post-Nuku.

[40]              Both cases involved an attack with a knife, against two victims, causing severe cuts.

[41]              To describe Grimshaw-Jones as involving provocation is a stretch, but I agree with the Crown this case is gang-related offending where Grimshaw-Jones was not. Mr Kershaw is a member of the Head Hunters. The two victims were not gang members, but Mr Kershaw believed they were. He was shouting gang slogans.

[42]              I disagree with Mr Nabney’s submission that this offending  falls  within band two of Nuku.   I consider it is, as the Crown submits, at the bottom end of   band three, because of the combination of aggravating factors.

[43]              However, I do consider the particular offending is analogous to that in Grimshaw-Jones. The injuries in that case were more serious, but the gang-element in this case puts the two more or less on par, in my view.

[44]              Neither counsel submitted any other cases by way of comparison, nor did the Judge refer to any, other than Nuku.

[45]              I cannot see that Grimshaw-Jones would have been differently decided post-Nuku. The analysis applied by the Court of Appeal in Grimshaw-Jones is

consistent with Nuku, in my view. Given my conclusion below, it does not matter whether Ms Collis point in this regard is correct, in any event.

[46]              In the interests of consistency with previous sentences, I consider, therefore, that an appropriate starting point for the lead offending is two years and eight months, being the start point adopted in Grimshaw-Jones.

[47]              However, as was discussed in the course of the hearing, although not in written submissions, when Judge Ingram uplifted for the stabbing to reach the starting point of  three  years,  six  months,  he  expressly  said  that  he  included  an  uplift  for  Mr Kershaw’s prior record. Although an unusual and abbreviated approach to sentencing, in order to properly compare the starting point to that applied in Grimshaw-Jones, I have to add such uplift as I would  assess for prior offending.   Mr Kershaw’s record, as the Judge noted, is substantial. I agree with the Crown that such an uplift could be anywhere between five and 10 months, and I agree it was properly applied by the Judge, albeit that the quantum he assessed was not mentioned. I consider an appropriate uplift would be at least six months. Such an uplift would be standard and I do not consider that totality principles preclude it, as Mr Nabney suggested.

[48]              That brings me to a sentence for  the  wounding  charges  of  three  years,  two months.

[49]              With 25 per cent off, I come to a sentence of two years, four-and-a-half months’ imprisonment for the lead offending. Adding the cumulative sentences, which are not challenged, I come to a total sentence of four years, five-and-a-half months’ imprisonment.

[50]              I do not regard this as materially different to Judge Ingram’s total sentence of four years, nine months’ imprisonment. I therefore do not consider the sentence imposed by Judge Ingram was manifestly excessive.

[51]              For completeness, I note that in terms of the totality of the sentence, I consider it is proportionate to the overall gravity of the offending.

Conclusion

[52]The appeal is dismissed.

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Hinton J