Kidd v Police

[2025] NZHC 1580

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2025-425-013 [2025] NZHC 1580

BETWEEN  MIHA TE KORORIA KIDD

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:                   12 June 2025 Appearances:        J A T Ross for Appellant

M B Brownlie for Respondent

Judgment:                13 June 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 13 June 2025 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KIDD v NEW ZEALAND POLICE [2025] NZHC 1580 [13 June 2025]

Introduction

[1]    Miha  Te   Kororia  Kidd1   (age  28)  was  sentenced  by  Judge  Harvey  on   5 November 20242 to two years and three months’ imprisonment on 24 charges of possession of cannabis for supply.3

[2]    The notice of appeal is out of time. Given Mr Kidd has had a change in counsel, and because of the merits of the appeal, I am satisfied it is in the interests of justice to allow the appeal out of time.

Facts

[3]    On 8 February 2024, Mr Kidd was sentenced to 10 months of home detention including for possession for supply of cannabis plant and resin.

[4]    On 31 May 2024, while Mr Kidd was on home detention at his Invercargill home address, police executed a search warrant at his house. Police located 9.7 grams of cannabis and $450 in cash. Police seized Mr Kidd’s phone to which he provided his passcode. Messaging on Mr Kidd’s phone evidenced possession and sale of cannabis from 2 December 2023 to 28 March 2024 during which time he was either on bail or on home detention.

[5]    During this period, Mr Kidd’s messages confirmed his possession of cannabis of supply to associates on 98 occasions. Police estimate, using Mr Kidd’s minimum quantities and values listed on his phone for transactions, that the 98 occasions cover over 458 grams of cannabis with a value over $8,100.

Criminal history

[6]    Mr Kidd has 17 previous convictions from 2016 (aged 18) to 2023, including five previous drug offences. Mr Kidd’s other offending includes driving offences, an assault and presenting an object like a firearm.

1      Also known by last name “Morrison”.

2      Police v Kidd [2024] NZDC 28489.

3      Misuse of Drugs Act, s 6(1)(f)—maximum penalty eight years’ imprisonment.

District Court decision

[7]The District Court Judge succinctly outlined Mr Kidd’s offending, noting:4

A real problem for you is that at the time of that dealing, or at least at the beginning, you were already on bail for previous dealing offences and then you were on home detention, and yet you still continued to deal in cannabis. You are a drug dealer, and it is not surprising that the pre-sentence report is relatively brief because it simply outlines for me the background and then recommends a term of imprisonment.

[8]    The Judge determined three years’ imprisonment was appropriate and, after making deductions for Mr Kidd’s guilty plea (25 per cent), sentenced Mr Kidd to  two years’ and three months’ imprisonment.5

Principles on appeal

[9]    Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal commented in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Submissions

Appellant’s submissions

[10]   Mr Ross, for the appellant, submits the starting point was too high and the deduction for mitigating factors was too little which resulted in a manifestly excessive end sentence.

4      Police v Kidd, above n 2, at [3].

5 At [5].

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

[11]   Mr Ross submits the offending resides at the lower end of category two of Terewi and a starting point closer to two years is appropriate.9 Mr Ross submits any financial gain would have been modest; Mr Kidd has stated he was dealing cannabis to pay off a debt and further that the profit identified by police would be reduced in reflection of the expense of buying the cannabis to on sell.

[12]   Mr Ross notes the Judge makes no reference to an uplift and so it appears the fact the offending occurred while on bail and home detention was factored into the starting point. Mr Ross acknowledges the aggravating factors do, however, warrant a six-month uplift.

[13]   Mr Ross submits Mr Kidd  was  entitled  to  deductions  in  addition  to  the 25 per cent applied for guilty pleas. The evidence for these additional deductions is based on information in an affidavit which Mr Ross seeks to adduce as further evidence on appeal. Mr Ross submits Mr Kidd should have received a 20 per cent deduction for a background of trauma, addiction to cannabis, poor mental health and rehabilitative prospects.10

[14]   Mr Ross submits Mr Kidd should also have received a deduction for the effect of parental incarceration on his daughter aged one-and-a-half years old. Mr Ross relies on the Supreme Court’s judgment in Philip v R to submit Mr Kidd should receive a 10 per cent deduction for this.11 However, he does identify, in a further memorandum to update the Court, that the child’s maternal grandmother has been granted interim guardianship and an interim parenting order. Although both parents are allowed supervised contact, at present the child does not have contact with either parent.

[15]   Mr Ross therefore submits  the  total  deduction  available  to  Mr  Kidd  is  55 per cent. He submits the end sentence should therefore be between 13.5 months’ imprisonment  (if  applied  to  the  30-month  starting  point  he  advocates  for)  and

9      R v Terewi [1999] 3 NZLR 62 (CA) at [4]. Citing also Kennedy v Police [2017] NZHC 3066;

Newton v Police [2019] NZHC 1245; and Smith v R [2022] NZCA 606.

10 Citing R v Rakuraku [2014] NZHC 3270; Solicitor-General v Heta [2019] 2 NZLR 241 at [67], Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Poi v R [2020] NZCA 312; Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108], [2022] 1 NZLR 509; Dunn v Police [2020] NZHC 316; Byrne v R [2022] NZHC 897; Hughes v R [2022] NZHC 2835; Solomon v Police [2020] NZHC 1674; and Roulson v R [2020] NZCA 255.

11 Philip v R [2022] NZSC 149; [2022] 1 NZLR 571 at [53] and [56].

16 months’ imprisonment (if applied to the three-year starting point taken by the Judge).

Respondent’s submissions

[16]   Mr Brownlie, on behalf of New Zealand Police, acknowledges a three-year starting point is not supported by the authorities and submits one of two years and three months’ imprisonment should be applied instead.12

[17]   Mr Brownlie submits the fact Mr Kidd offended while on bail and subject to home  detention  is  a  serious  aggravating  factor  which  warrants  an  uplift  of    six months.13

[18]   Mr Brownlie does not dispute Mr Kidd is a user of cannabis but points to the fact all the evidence regarding background, mental health and addiction are self-reported. Mr Brownlie further submits there is a paucity of detail in Mr Kidd’s affidavit relating to being  physically  and  sexually  abused  as  a  young  person.  Mr Brownlie also correctly notes  there  is  no  information  before  the  Court  on  Mr Kidd’s diagnoses of anxiety, depression and PTSD and submits given such information should be readily available, less weight can be given to these factors.

[19]   Mr Brownlie relies on the Supreme Court’s decision Berkland v R and this Court’s decision in Carroll v R to submit background factors, must, at some point, be negated by  repeat  offending  and that in  this case, a deduction of no  more than    10 per cent is warranted for drug use, mental health difficulties and background factors.14

[20]   Mr Brownlie submits no deduction is available to Mr Kidd for the impact of parental incarceration on his daughter. Although Mr Brownlie acknowledges the authorities, he submits the fact Mr Kidd was selling cannabis from home soon after his daughter was born is a serious aggravating factor. Further, Mr Kidd has engaged

12     Citing Rangirangi v Police [2023] NZHC 2554; Habib v Police [2018] NZHC 1224; Devereux v Police [2017] NZHC 167; and Teraki v R [2022] NZHC 2658.

13     Citing Sentencing Act 2022, s 9(1)(c); and Clunie v R [2013] NZCA 110.

14     Berkland v R, above n 10; and Carrol v R [2023] NZHC 3569.

in repetitive offending, whilst subject to home detention, and has reoffended despite completing counselling. Mr Brownlie submits these factors negate any possible deduction for parental incarceration.15

[21]   Mr Brownlie submits the appropriate end sentence is 23 months’ imprisonment (rounding down) and such a reduction would not amount to tinkering.

Analysis

Starting point

[22]   Mr Kidd’s offending appropriately is categorised at the lower end of category two of Terewi (which although categorising cultivation, can be applied to dealing), the offending being small scale dealing for commercial purposes which attracts a starting point of two to four years.16

[23]   I consider the following cases are analogous to the present in terms of quantum and context:

(a)Teraki v Police—police found 271 grams of cannabis at the defendant’s address along with $6,975 in cash, electronic scales and a tick list recording debts and payments and numerous unused zip lock bags.17 The Court upheld the two-year starting point.18

(b)Thomas v R—police found 772 grams of cannabis head at the defendant’s address, $12,200 in cash, electronic scales and many unused plastic bags.19 The Court upheld a two year and four-month starting point.20

(c)Devereux v Police—police found 110.74 grams of cannabis in the second defendant’s car along with scales, $3,120 in cash and

15     Citing Williams v R [2024] NZHC 593.

16     R v Terewi, above n 9, at [4], applied in R v Gray [2008] NZCA 224.

17     Teraki v R, above n 12.

18 At [23].

19     Thomas v R [2022] NZHC 2494.

20 At [14].

unlawful/restricted weapons.21 The High Court quashed the three-year starting point and applied an 18-month starting point instead.22

[24]   With reference to Terewi and to these cases, I consider a starting point of three years was manifestly excessive. A starting point of two years is appropriate for the offending. However, I also agree that an uplift is warranted for the fact offending occurred whilst Mr Kidd was on bail and subject to home detention.23 A six-month uplift is applied for this aggravating factor.

Application to adduce further evidence

[25]   Mr Ross seeks to adduce further evidence on appeal in the form of an affidavit sworn by Mr Kidd on 17 April 2025 and an additional memoranda and evidence on the Family Court proceedings. Despite the general rule that further evidence must be fresh and cogent to be admitted, the overriding test is whether it is in the interest of justice to admit the evidence.24 The evidence associated with the Family Court proceedings is fresh, the grandmother’s application for care only occurring last month. The evidence in Mr Kidd’s affidavit is not strictly fresh as it could have been called at Mr Kidd’s sentencing hearing. Mr Kidd deposes he met with his sentencing lawyer on one occasion prior to sentencing although he does not say what he discussed with him. He says his lawyer did not raise Mr Kidd’s drug dependency, background, family circumstances or mental health issues with the sentencing Judge (although I note some of this information was available in the pre-sentence report which the Judge has regard to).

[26]In these circumstances I allow the further evidence to be adduced.

Deductions

[27]   Mr Kidd seeks deductions on the basis of background factors, mental health, addiction and rehabilitation. I accept Mr Kidd had a challenging upbringing involving

21     Devereux v Police, above n 12.

22 At [35].

23     Lavea v R [2014] NZCA 192 at [23]; and Benson v R [2013] NZCA 39 at [10].

24     R v Bain [2004] 1 NZLR 638 (CA) at [22]–[23]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR

273 at [120].

violence and abuse as outlined in the pre-sentence report, which no doubt has led him on this path of criminal offending.25

[28]   Mr Kidd self-reports as suffering from PTSD, anxiety and depression. Although less weight may be attached to self-reporting, the Supreme Court in Berkland clarifies such reports should not be discounted (although this was in the context of addiction).26 Regarding addiction, Mr Kidd deposes he started using cannabis regularly for mental health and has, in recent times, obtained a prescription through the Cannabis Clinic. Although the pre-sentence report identifies cannabis as contributing to Mr Kidd’s offending, it also identifies a drug debt (arising from his previous arrest) as the primary motivation behind the reoffending, rather than addiction. I consider, however, any addiction is part and parcel of Mr Kidd’s mental health and a deduction can be afforded on these factors together.

[29]   I allow a deduction of 10 per cent to account for Mr Kidd’s background factors, mental health and addiction.

[30]   Mr Ross did not submit comprehensively on rehabilitation except to point out Mr Kidd had engaged in counselling prior to being sentenced. However, I have no real details about the degree of engagement Mr Kidd displayed and the fact is he re-offended on bail and home detention. I am not prepared to allow a deduction for rehabilitative efforts on prospect.

[31]   The effect of parental incarceration on a defendant’s children must be taken into account under s 8(h) and 8(i) of the Sentencing Act 2002. The Supreme Court in Philip v R held deductions for parental incarceration should not be considered “rare”, rather, “[w]hat is required is a consideration of all the relevant circumstances which must include the child’s interests.”27 The Court also held it would be incorrect to emphasise, to the exclusion of all of factors, whether the defendant is the primary caregiver or the seriousness of the offending.28

25     Berkland v R, above n 10, at [108].

26     Berkland v R, above n 10, at [129].

27     Philip v R, above n 11, at [56].

28 At [56].

[32]   Mr Kidd’s daughter is one and a half years old and has recently been placed in the care and guardianship of her maternal grandmother on an interim basis. Both parents are allowed supervised contact although Mr Kidd’s incarceration affects his ability to have contact with her.29 Prior to his incarceration, Mr Kidd was a hands-on parent, sharing care of the child with his partner.

[33]   I do not accept Mr Brownlie’s submissions that Mr Kidd’s offending is so serious as to prevent a deduction being available. Mr Kidd’s offending is far from the serious firearm charges the defendant in  Williams v R  was facing, being the case  Mr Brownlie relies on for this proposition.30 Further, in a more recent case by the same Judge, Eaton J allowed a 2.5 per cent deduction for a defendant, with two young children, who was convicted of numerous offences including aggravated burglary and assault—more serious charges than the ones here.31 Given the disruption to the child’s life caused by her mother’s situation and the need to remove the child from that, I consider it would be advantageous for her to have contact with her father (albeit supervised) as soon as that is practicable to retain connection with him as a parent.

[34]   I therefore consider a five per cent deduction is available to Mr Kidd to account for the effects of parental incarceration.32

[35]   Mr Kidd therefore receives a total discount on sentence of 40 per cent. When this is deducted from the sentence of two years six months’ imprisonment, it results in an end sentence of 18 months’ imprisonment.

Home detention

[36]   Mr Kidd is now facing a short-term sentence of imprisonment which makes him eligible for home detention. I must therefore consider whether it is an appropriate case to commute the term to one of home detention, even though it is not sought by counsel for Mr Kidd.

29     Sweeney v R [2023] NZCA 417 at [27].

30     Williams v R, above n 15.

31     Cassidy v R [2025] NZHC 361 at [45].

32     See Philip v R, above n 11, at [50]–[51]; Campbell v R [2020] NZCA 356 at [1] and [43]; R v Harlen (2001) 18 CRNZ 582; and Sweeney v R, above n 29, at [27].

[37]   Mr Kidd’s offending occurred while on bail, and while serving a sentence for cannabis dealing offending. This occurred notwithstanding a completion of drugs and alcohol counselling through Ngā Kete Mātauranga Pounamu. The pre-sentence report identifies Mr Kidd as being at moderate to high risk of re-offending. Further, the same motivation to offend, being a drug-debt, may not have dissipated. In these circumstances, I do not consider a sentence of home detention to be appropriate. A sentence of imprisonment better meets the principles of deterrence and supporting Mr Kidd’s rehabilitative prospects noting the recent home detention sentence did not prevent reoffending and that Mr Kidd will not be able to reoffend whilst in prison.

Result

[38]Leave to appeal out of time is granted.

[39]The application to adduce further evidence on appeal is allowed.

[40]   The appeal is allowed. Mr Kidd’s sentence is quashed and substituted with  18 months’ imprisonment.

Solicitors:

Crown Solicitor, Invercargill

Copy to:
J A T Ross, Barrister, Invercargill