Kite v R

Case [2018] NZCA 485 8 November 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA187/2018
[2018] NZCA 485

BETWEEN	JOSHUA MASON KITE Appellant
AND	THE QUEEN Respondent

Hearing:	8 October 2018
Court:	Cooper, Venning and Collins JJ
Counsel:	M E Goodwin and N Soondram for Appellant H D L Steele for Respondent
Judgment:	8 November 2018 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

This is an appeal against sentence. Mr Kite was sentenced in the High Court to an effective term of 11 and a half years’ imprisonment after pleading guilty to a range of charges.[1] This was the result of imposing cumulative sentences in respect of offending that the Judge concluded was different in kind for the purpose of s 84(1) of the Sentencing Act 2002 (the Act).
[1]R v Kite [2018] NZHC 409.
The appeal was not filed in time. The Crown points to no prejudice and abides the Court’s decision on an extension of time. We will extend time accordingly.
The appellant pleaded guilty to each of the following offences:
(a)possession of methamphetamine for supply contrary to s 6(1)(f) and s 6(2)(a) of the Misuse of Drugs Act 1975 (the methamphetamine offending);
(b)one charge of using a firearm against a constable under s 198A(1) of the Crimes Act 1961;
(c)two charges of unlawfully taking a motor vehicle under s 226(1) of the Crimes Act;
(d)one charge of impersonating police under s 48(3) of the Policing Act 2008;
(e)one charge of carrying a firearm, except for a lawful, proper and sufficient purpose under s 45(1) of the Arms Act 1983;
(f)two charges of failing to stop for red and blue lights under ss 52 and 114 of the Land Transport Act 1998; and
(g)one charge of dangerous driving under s 35(1)(b) of the Land Transport Act.
The methamphetamine offending arose out of events that occurred in Auckland in June 2016. The other offending occurred in Whangarei and elsewhere in Northland and was addressed at sentencing as the “Whangarei offending”. It arose out of a continuing incident in August 2016 and those offences were appropriately treated as concurrent for sentencing purposes. The methamphetamine offending was not connected to the Whangarei offending, and the Judge found it was different in kind from the Whangarei offending, so as to make cumulative sentences appropriate in terms of s 84(1) of the Act.[2]

Grounds of appeal

[2]At [69].

The principal ground of the appeal is that the sentence imposed is manifestly excessive, and this because the Judge failed to take into account the totality principle. A second ground of appeal involved the claim that the Judge should have imposed concurrent sentences, an approach taken by the High Court confronted with a similarly broad range of offending in R v Duthie.[3] The fact that the High Court Judge in that case took a different approach, however, does…

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 Kite v R

Details

AGLC: Kite v R [2018] NZCA 485
Case: [2018] NZCA 485
Decision Date: 8 November 2018 at 11 am

CaseChat Overview and Summary

Joshua Mason Kite appeals against his sentence, arguing it is manifestly excessive as the trial judge failed to take into account the totality principle. The Crown argues the sentence was not excessive and that the failure to mention the principle was of no consequence if the sentence was not out of proportion to the gravity of the offending. The appeal was not filed in time. The Crown points to no prejudice and abides the Court’s decision on an extension of time. The Court will extend time accordingly. The appeal is dismissed and the application for an extension of time to appeal is granted. The Court found that the sentence of 11 years and 6 months was not wholly out of proportion to the gravity of the overall offending. The appellant had committed a range of serious offences including using a firearm against a police officer and impersonating a police officer. The Court found that the starting point for the use of the firearm against a constable was not too high and the sentence imposed was not out of proportion to the gravity of the overall offending.

Orders