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…

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 Kershaw 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: [2019] NZHC 379
Decision Date: 8 March 2019

CaseChat Overview and Summary

Kalwyn George Kershaw appeals his sentence of four years and nine months’ imprisonment, imposed by Judge Ingram in the Tauranga District Court, on 19 October 2018. The appeal was heard in the High Court at Rotorua on 19 February 2019 and the judgment was delivered on 8 March 2019. The appellant was convicted of multiple charges including wounding with intent to injure, unlawful possession of ammunition and a firearm, possession of methamphetamine and methamphetamine utensils, possession of a knife in a public place, breach of court release conditions, common assault, and assaulting a prison officer. The appellant challenges the sentence imposed on the wounding charges, arguing that the starting point was too high and the uplift applied for the stabbing was excessive. The respondent argues that the sentence was appropriate and that the starting point and uplift were properly applied. The court held that the starting point of two years and eight months for the wounding charges was appropriate, and the uplift of six months for the stabbing was standard and not precluded by totality principles. The court found that the sentence imposed by Judge Ingram was not manifestly excessive and dismissed the appeal.

The final orders of the court are that the appeal is dismissed. The sentence of four years and nine months’ imprisonment remains in place. The appellant is not entitled to any costs.

Orders