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Kinita v The Queen

Kinita v The Queen

Case [2020] NZHC 1008 27 November 2020

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-010

[2020] NZHC 1008

BETWEEN
CATHRYN KINITA

Appellant

AND

THE QUEEN

Respondent

Hearing: 10 November 2020

Appearances:

E Hall for the Appellant C Ure for the Crown

Judgment:

27 November 2020

JUDGMENT OF GRICE J

[1]This is an appeal against a sentence imposed by the District Court.1

[2] Ms Kinita had pleaded guilty and was convicted on one charge of operating a motor vehicle while under the influence of alcohol causing death.2 At the same time she was convicted and sentenced on charges of possession of methamphetamine,3 possession of cannabis,4 and possession of a pipe.5 The sentences were concurrent.

1      R v Kinita [2020] NZDC 8014 [District Court decision]. The names of friends and wider family contained in the victim impact statements were suppressed; at [37].
2      Land Transport Act 1998, s 61(2)(b) and (3AA); maximum penalty of 10 years’ imprisonment or a $20,000 fine, and disqualification from holding or obtaining a driver licence for one year or more.
3      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a); maximum penalty of six months’ imprisonment or a $1000 fine.
4      Section 7(1)(a) and (2)(b); maximum penalty of three months’ imprisonment or a $500 fine.
5      Section 13(1)(a) and (3); maximum penalty of one year’s imprisonment or a $500 fine.

KINITA v R [2020] NZHC 1008

[3] The appellant was sentenced to 22 months and two weeks’ imprisonment, together with being disqualified from driving for two years. Ms Kinita is presently on bail.

[4] The appellant appeals on the basis that the least restrictive outcome and most appropriate sentence was home detention. The appellant submits that:

(a)The sentence starting point was too high.

(b)Insufficient credit was given to other mitigating factors.

(c)The Moses v R methodology should have been applied.6 This would have resulted in a larger discount being applied to the start sentence for mitigating factors. That methodology involves the aggregation of discounts rather than the process known as the three-step process in which the guilty plea discount is applied separately. Ms Kinita was sentenced on 8 May 2020.7 She lodged an appeal on 19 May, and the Court of Appeal decision in Moses v R was delivered on 15 July 2020.

(d)Imprisonment should have been replaced by a sentence of home detention.

Background

[5] On 3 November 2019 the appellant had been making an early morning delivery of eggs. She had been awake since 3.00 am. The night before she had socialised with friends and consumed cannabis and methamphetamine. She had been awake until about 11.00 pm that evening so had had little sleep.

[6] In the afternoon of 3 November Ms Kinita was driving north in Manakau on State Highway 1. The victim, Mr Jenkins, an avid cyclist was also cycling north to the left of the fog line on the side of the road.

6 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
7 District…

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 Kinita v The Queen

Details

AGLC: Kinita v The Queen [2020] NZHC 1008
Case: [2020] NZHC 1008
Decision Date: 27 November 2020

CaseChat Overview and Summary

The appeal in Kinita v The Queen concerns the sentence imposed on Ms Kinita by the District Court for operating a motor vehicle while under the influence of drugs causing death, along with other drug-related charges. The High Court allowed the appeal on the basis that the sentence should have been home detention instead of imprisonment. The appellant argued that the starting point for sentencing was too high, insufficient credit was given to mitigating factors, the Moses v R methodology should have been applied, and that imprisonment should have been replaced by home detention. The Crown opposed the appeal on the basis that the starting point was within the appropriate range, the discounts given were sufficient, and the methodology was not in error. The High Court found that while the starting point was within the appropriate range, additional discounts should have been applied for the appellant's personal circumstances, addiction, and vulnerable mental health. The Court also found that home detention was the most appropriate sentence in the circumstances, and substituted the sentence of imprisonment with one of home detention for 10 months. The Court emphasised the need for Ms Kinita to engage in treatment towards rehabilitation in relation to her addictions.

The High Court allowed the appeal, set aside the sentence of 22 months and two weeks’ imprisonment, and substituted a sentence of 10 months home detention. The Court imposed special conditions for the sentence of home detention, including prohibitions on possessing, consuming or using alcohol or non-prescription drugs, and requirements to attend and complete appropriate alcohol, drug, rehabilitation and maintenance programmes. The Court also confirmed the two year disqualification from holding or obtaining a driver’s licence.

Orders