Kimber v The Queen - [2020] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000017

[2020] NZHC 1053

BETWEEN
MARK KIMBER

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 May 2020

Appearances:

P Kaye for the Appellant

A Pollett for the Respondent

Judgment:

20 May 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 May 2020 at 2:00 am

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

Solicitors/Counsel:
P Kaye, Barrister, Auckland Pollett Legal Limited, Tauranga

KIMBER v R [2020] NZHC 1053 [20 May 2020]

Introduction

[1] Mark Gregory Kimber appeals against a sentence of three years and six months’ imprisonment imposed by Judge IDR Cameron in the District Court at Tauranga on 21 January 2020 with respect to a number of charges, to all of which Mr Kimber had pleaded guilty.1 Judge Cameron had previously given Mr Kimber a sentence indication in respect of those charges on 5 April 2019.2

[2] Mr Kimber says that Judge Cameron erred in adopting too high a starting point in respect of both the kidnapping and methamphetamine related offending for which he was being sentenced. The appellant also says the Judge erred in not affording him discounts or otherwise taking account of his poor mental and physical health, addiction issues and remorse. He also says the discount allowed for rehabilitative efforts was insufficient. As a result of these errors, the appellant says, the sentence imposed was manifestly excessive.

Background

[3]Mr Kimber pleaded guilty to:

(a)two charges of assault with a weapon;3

(b)two charges of male assaults female;4

(c)one charge of kidnapping;5

(d)one charge of unlawful possession of a firearm;6

(e)two charges of unlawful possession of explosives (ammunition);7

1      R v Kimber [2020] NZDC 1271.
2      R v Kimber (Sentencing Indication of Judge IDR Cameron) DC Tauranga CRI-2018-070-653, 5 April 2019.
3      Crimes Act 1961, s 202C. Maximum penalty 5 years’ imprisonment.
4      Section 194(b). Maximum penalty 2 years’ imprisonment.
5      Section 209. Maximum penalty 14 years’ imprisonment.
6      Arms Act 1983, s 51. Maximum penalty 3 years’ imprisonment or a fine not exceeding $4000.
7      Section 45(1). Maximum penalty 4 years’ imprisonment or a fine not exceeding $5000.

(f)one charge of possession of utensils for the consumption of methamphetamine;8 and

(g)one charge of possession of methamphetamine for supply.9

[4] The summary of facts, on the basis of which Judge Cameron had given Mr Kimber his sentence indication, records the following.

[5] Mr Kimber had been in a relationship with the victim of the violence offending for seven years prior to the offending. At some point in July or August 2017, Mr Kimber and the victim were at their home address when Mr Kimber became angry. He tried to hit the victim in the head with the crutch he had used for mobility since a motorcycle accident in 2008. She blocked his swing, causing the crutch to instead hit her elbow, causing nerve damage in her arm.

[6] On 12 January 2018,10 Mr Kimber and the victim were in a house bus…

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 Kimber v The Queen

Details

AGLC: Kimber v The Queen [2020] NZHC 1053
Case: [2020] NZHC 1053
Decision Date: 20 May 2020

CaseChat Overview and Summary

Mark Kimber appeals against a sentence of three years and six months’ imprisonment imposed by Judge IDR Cameron in the District Court at Tauranga on 21 January 2020. Kimber pleaded guilty to multiple charges, including assault with a weapon, kidnapping, and possession of methamphetamine for supply. He claims the starting point for his sentence was too high and that the judge failed to sufficiently consider his mental and physical health, addiction issues, and remorse. The appeal raises questions about the starting point for the sentence, the appropriate band for the methamphetamine-related charges, and the discount for rehabilitation efforts. The court considered the evidence and submissions, ultimately finding that the sentence was not manifestly excessive or wrong in principle. The appeal was dismissed, and the original sentence was upheld.

Orders