Kinghorn v Police - [2018] NZHC 2026

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000055

[2018] NZHC 2026

BETWEEN
TIMOTHY KINGHORN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 August 2018

Appearances:

A G James for Appellant

H F McKenzie for Respondent

Judgment:

9 August 2018

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Kinghorn, was sentenced to two years, three months’ imprisonment after pleading guilty in the District Court to one charge of burglary and one charge of unlawful possession of a firearm.1 He appeals that sentence on the ground the District Court Judge failed to adequately recognise the time he had spent on restrictive EM Bail.

The offending

[2] Turning now to the offending, Mr Kinghorn was in a relationship with his co- offender, Ms Orange. She was previously, it seems, in a relationship with the victim. Ms Orange invited the victim to her house to spend the evening with her. While the victim was thus occupied, Mr Kinghorn broke into the victim’s house and stole over

1 Police v Kinghorn [2018] NZDC 10281.

KINGHORN v NZ POLICE [2018] NZHC 2026 [9 August 2018]

$22,500 worth of property including two firearms after prizing open a firearm safe, a television, a motorcycle, and power tools. Throughout the burglary Mr Kinghorn was in contact with Ms Orange via text message, who updated him on the victim’s movements.

District Court sentencing

[3] In the District Court, Judge Garland noted the careful planning that went into the burglary, and the deception and breach of trust it involved. His Honour also noted that the targeting and taking of firearms was a “very serious aggravating factor because of the concern that such firearms can easily… fall into the wrong hands”. Taking these matters into account the Judge adopted a starting point of three years’ imprisonment. An uplift of three months was applied for Mr Kinghorn’s significant history of offending including eight dishonesty offences.

[4] The Judge then noted that Mr Kinghorn had spent eight and a half months on electronically monitored bail (EM bail) with restrictions, “apparently without incident”, and he reduced the sentence by three months to recognise that. In addition, the full 25 per cent reduction for guilty plea was applied.

Jurisdiction and approach to appeal

[5] Mr Kinghorn appeals that decision as of right.2 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.3 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

2 Criminal Procedure Act 2011, s 244.
3 Criminal Procedure Act, s 250.

Submissions

Appellant

[6] Turning now to the appellant’s submissions, Mr James for the appellant takes no issue with the starting point, the uplift 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.

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Details

Case: [2018] NZHC 2026
Decision Date: 9 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Mr. Timothy Kinghorn, appealed the sentence imposed on him by the District Court for burglary and unlawful possession of a firearm. The appeal focused on whether the District Court adequately recognised the time Mr. Kinghorn had spent on restrictive electronically monitored (EM) bail. Mr. Kinghorn argued that the three-month discount given for his time on EM bail was inadequate, while the respondent argued the sentence was within the acceptable range.

The court considered the statutory mitigating factor of time spent on EM bail and the broad discretion given to sentencing judges in determining the appropriate discount. The court acknowledged the restrictive nature of Mr. Kinghorn's EM bail conditions, which were akin to home detention, and his compliance with those conditions. However, the court found that while the District Court could have awarded a greater discount, there was no error in the way the judge exercised his discretion. The court emphasised that the overall sentence was within range, considering the seriousness of the offending and the timing of the guilty plea.

The High Court ultimately dismissed the appeal, finding no error in the sentence imposed by the District Court. The reasoning of the District Court judge fell within the broad discretion afforded to him under the law. The court agreed with the respondent that the overall sentence was well within the acceptable range, taking into account the nature of the offending and the timing of the guilty plea.

Orders