Kimura v Police - [2024] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-000032

[2024] NZHC 3032

BETWEEN
PEYOTE KIMURA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 October 2024

Counsel:

K M Pedder for Appellant

J P Field-Turner for Respondent

Judgment:

17 October 2024

JUDGMENT OF RADICH J

[1] Peyote Kimura has been convicted on one charge each of receiving a stolen vehicle,1 reckless damage of property,2 driving while disqualified,3 failing to stop for the police,4 dangerous driving,5 and breach of release conditions.6 On 22 August 2024, he was sentenced by Judge Northwood to two years and four and a half months’ imprisonment.7

[2] Mr Kimura appeals from that sentencing decision on the basis the Judge erred by declining to reduce the starting point to account for totality and by declining to grant a credit for remorse. The Crown opposes the appeal in part. It accepts the Judge

1      Crimes Act 1961, s 246; maximum penalty seven years’ imprisonment.
2      Section 269(2)(a); maximum penalty seven years’ imprisonment.
3      Land Transport Act 1998, s 32(1)(a); maximum penalty three months’ imprisonment.
4      Sections 52A(1)(a)(ii), (5) and (6); maximum penalty three months’ imprisonment.
5      Section 35(1)(b); maximum penalty three months’ imprisonment.
6      Sentencing Act 2002, s 96; maximum penalty one year’s imprisonment.
7      Police v Kimura [2024] NZDC 20153 [Sentencing decision].

KIMURA v NEW ZEALAND POLICE [2024] NZHC 3032 [17 October 2024]

needed to adopt a lower starting point to account for totality but does not accept the Judge erred by declining to grant a credit for remorse.

[3] I will allow the appeal on the basis the starting point adopted was too high and the resulting sentence was manifestly excessive. I do not see that the Judge erred in declining to grant a credit for remorse.

[4]A sentence of imprisonment of two years will apply.

Background

[5] On 18 December 2023, the police found Mr Kimura driving a vehicle which had been stolen overnight between 14 and 15 December. Mr Kimura drove away immediately despite the police activating lights and sirens. He drove down the wrong side of the road at 30 kilometres per hour over the speed limit (causing other cars to take evasive action to get out of the way) and he drove through red lights. When police caught up with him, they tried to use a tyre deflation device to prevent him from continuing to drive. Mr Kimura evaded that attempt and in doing so lost control of the car, crashed through a fence and into a garage. He then ran away on foot as the car and the garage caught fire.

[6] As a result of the fire, significant structural damage was caused to the garage and property inside it was destroyed. One of the victims of the offending, the owner of the house, wrote a victim impact statement that explained the financial and sentimental impact the fire had on him and his family.

[7] Mr Kimura had been disqualified from…

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 Kimura v Police

Details

AGLC: Kimura v Police [2024] NZHC 3032
Case: [2024] NZHC 3032
Decision Date: 17 October 2024

CaseChat Overview and Summary

Peyote Kimura appeals against his sentence for various charges including receiving a stolen vehicle, reckless damage, and dangerous driving. The appeal focuses on whether the sentencing Judge erred in setting the starting point for imprisonment and in declining to grant a credit for remorse. The Crown agrees that the starting point was set too high but argues against granting a credit for remorse. The High Court found that the starting point was indeed too high and that the sentence was manifestly excessive. However, the Court agreed with the Judge's decision not to grant a credit for remorse, finding that Mr Kimura's expressions of remorse were superficial and not genuinely felt.

The Court assessed the appropriate starting point for the sentence by considering the totality principle and comparing Mr Kimura's case to similar cases. It determined that the uplifts for each charge were higher than necessary and that a starting point of two years and six months was more appropriate. The Court concluded that the starting point set by the Judge at three years was too high, resulting in a manifestly excessive sentence. The Court allowed the appeal and reduced the sentence to two years’ imprisonment.

Orders