Kino v Police - [2012] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-37 [2012] NZHC 2570

BETWEEN TRAAN HUNTER KINO Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 October 2012

Counsel: N M Dutch for Appellant
H J Sheridan for Respondent

Judgment: 4 October 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, PO Box 13063, Tauranga
Counsel:
N M Dutch, PO Box 14124, Tauranga

KINO V NEW ZEALAND POLICE HC TAU CRI 2012-470-37 [4 October 2012]

Introduction

[1] Mr Kino pleaded guilty to four charges of burglary, three of theft and one of breaching a prison release reporting condition. He came up for sentence in the District Court at Tauranga on 11 September 2012, before Judge Burnett.

[2] The Judge’s sentencing notes suggest that she took a dim view of the offending. She referred specifically to the pre-sentence report which stated that Mr Kino had a low motivation to change his ways and was assessed as a high risk to the safety of others. Judge Burnett imposed an effective term of imprisonment of three
years and six months.1 Mr Kino appeals against that sentence on the grounds that it

is manifestly excessive.

The facts

[3] The four burglaries occurred on 18 and 19 February and 9 and 10 April 2012. They occurred in the Tauranga and Welcome Bay areas. In each case, Mr Kino entered a house or shop and took items that were readily accessible. On some occasions occupants were present; on others they were not.

[4] The three thefts occurred on 1, 5 and 13 April 2012. A bag was stolen on 1

April; a wallet on 5 April; and another bag on 13 April, this bag was one that contained passports, a wallet, cash, credit cards, a camera, jewellery and other items that together were valued at about $4,000.

Sentencing in the District Court

[5] In sentencing Mr Kino, Judge Burnett described the burglaries as “blatant”.

She added:

[3] ... You simply were going into people’s houses, regardless of whether they were there in the house or not and taking what you could. On one occasion, when you were confronted by an occupier, you had a ready

1 Police v Kino DC Tauranga CRI 2012-070-4023, 11 September 2012 (Judge Burnett).

explanation at hand. You have, on one of these burglaries, simply walked through an unlocked door when the occupier was at the rear of the property, and stole a large amount of jewellery, credit cards, cellphone and cash.

[4] Then within a very short space of time, you were walking into another property and somebody is packing up their car, and they had a number of bags in the vehicle. While the car is parked inside the garage and the person, the occupier, has gone back into the house to get something else to put into the car, you go into the garage and you take one of the bags from the boot of the car, and it has got all of the family’s holiday items, passports,…

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: [2012] NZHC 2570
Decision Date: 4 October 2012

CaseChat Overview and Summary

In Kino v Police, Traan Hunter Kino appealed against the sentence imposed on him by the District Court, which was an effective term of imprisonment of three years and six months for multiple charges of burglary and theft, as well as breaching a prison release reporting condition. The appeal was heard in the High Court at Tauranga, before Heath J. The court was required to decide if the sentence was manifestly excessive and whether there was any double counting of aggravating factors. The court found that the District Court may have inadvertently double counted some aggravating factors, and the sentence was therefore considered afresh. The court determined that an appropriate starting point for the burglaries would be three years and six months imprisonment, with a six-month uplift for other offending. The court added six months to reflect the previous convictions and then applied a 25% credit for the early guilty pleas, resulting in an end sentence of three years imprisonment. The sentences for the remaining theft charges and breach of prison release conditions were to be served concurrently with the lead sentence. The appeal against sentence was allowed, and the sentences were modified accordingly.

The final orders of the court were that the sentences of three years imprisonment for the four burglaries and the theft of items to the value of $4000 were to remain intact. The sentences of two months imprisonment on the remaining theft charges, and that of four months imprisonment on the breach of prison release conditions were to be served concurrently with the lead sentence on the burglary and more serious theft charges.

Orders