Kerwin v Police - [2014] NZHC 3106

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-010 [2014] NZHC 3106

BETWEEN
HAYDEN JAMES KERWIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 November, 2 December and 5 December 2014

Counsel:

R A Harrison for Appellant
E J Riddell for Respondent

Judgment:

5 December 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 5 December 2014 at 11.45 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Inangahua Chambers, Blenheim for Appellant
Crown Solicitor, Nelson for Respondent

KERWIN v NEW ZEALAND POLICE [2014] NZHC 3106 [5 December 2014]

[1] Further to my interim judgment of 2 October 2014, this appeal has been adjourned on three occasions: to 28 November 2014; and 2 December; and now to today’s date.

[2] In my interim decision, I accepted the advice of both counsel that a starting point of three years or less was appropriate. In this regard I record the acknowledgement of Ms Riddell for the Crown that the correct starting point should have been three years. On that basis, and having regard to comparable cases, I am satisfied that a starting point of three years imprisonment is appropriate.

[3] The outstanding matters for determination today are whether a greater discount than that allowed by Judge Russell at sentencing for remorse and for participation in restorative justice ought to be given to reflect those factors and whether the best interests of all concerned would be served if Mr Kerwin were able to continue in his current employment, which he has now been undertaking for some time now and was therefore able to continue making weekly reparation payments of up to $50 to the victim company. The payment of reparation already made, of more than $14,000, can be taken as a reflection of greater contrition than appeared to have been the case at the time of the restorative justice meeting and does justify a greater percentage discount to reflect genuine remorse. The views of the owners of the victim company are an important part of this consideration. However, I record that the owner of the victim company is not mollified by any of the steps taken by Mr Kerwin, including the payment of reparation and feels it is more important that he serve a full time custodial sentence than continue in his present employment. This is regardless of the fact that continuing in employment will enable the continuation of reparation payments and is also based on a misconception that Mr Kerwin’s current employer is a business competitor.

[4] Another aspect on which the Court required updated information was the certainty of ongoing employment with Mr Kerwin’s current employer, Vent, and the enhanced possibility of future full time employment with that company. Other related and important issues on which the Court required updating were the feasibility of Mr Kerwin being able to continue with Vent if he is sentenced to home detention, in lieu of a full time custodial sentence. Another aspect was the necessity

for…

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 Kerwin v Police

Details

AGLC: Kerwin v Police [2014] NZHC 3106
Case: [2014] NZHC 3106
Decision Date: 5 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Hayden James Kerwin appealed against his sentence of two years and three months' imprisonment, imposed by the Blenheim District Court, following a conviction for fraud and dishonesty. The court had to determine whether the original sentence should be altered to reflect Kerwin's remorse and participation in restorative justice, as well as the feasibility of imposing a sentence of home detention instead of imprisonment. The court also considered the impact of a custodial sentence on Kerwin's employment and ability to continue reparation payments to the victim company.

The court found that a greater discount than that allowed by the District Court should be given to reflect Kerwin's remorse and participation in restorative justice. The court noted that Kerwin had made significant efforts to repair the damage caused by his offending, including making reparation payments of over $14,000, and had shown genuine contrition. The court also found that the best interests of all concerned would be served if Kerwin were able to continue in his current employment, which would enable him to continue making reparation payments and address his addiction and underlying depression.

The court considered the positives that have emerged from the wreckage caused by Kerwin's offending, including the restoration of his relationship with his partner and sons, and his positive work ethic and skill at his current employer. The court also noted that Kerwin's parents were very supportive and provided him with a home, general supervision, and budgeting supervision. The court found that a sentence of home detention would not be a soft option and would require Kerwin to attend an alcohol and drug assessment and any recommended treatment, including residential, to the satisfaction of the Probation Officer.

The court quashed the original sentence of two years and three months' imprisonment and imposed a sentence of one year home detention with special conditions. The court also imposed standard and special post-detention conditions, which are to apply until six months after the detention end date. The order for reparation in the sum of $50,000 stands.

Orders