Kite v The King
[2025] NZHC 1624
•18 June 2025
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2025-442-11&12 [2025] NZHC 1624
BETWEEN JOEL LAWRENCE KITE
Appellant
AND THE KING
Respondent
Hearing: 3 June 2025 Appearances: E J Riddell for Appellant
M A O’Donoghue for Respondent
Judgment: 18 June 2025
JUDGMENT OF BOLDT J
Sentence appeal
Introduction
[1] The appellant, Joel Kite, pleaded guilty to charges of participating in an organised criminal group,1 failing to carry out his obligations in relation to a computer search2 and a representative charge of supplying methamphetamine.3 On 11 March 2025, Judge J E Rielly sentenced him to three years and three months’ imprisonment.4 Mr Kite appeals against his sentence.
1 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
2 Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
3 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a). Maximum penalty life imprisonment.
4 R v Kite [2025] NZDC 5214 [Decision under appeal].
KITE v R [2025] NZHC 1624 [18 June 2025]
Background
[2] Until recently, Mr Kite was a patched member of the Southern Swarm chapter of the Killer Beez. The Southern Swarm operates in Nelson, Marlborough and Canterbury, and on the West Coast of the South Island.
[3] Between 31 July and 1 December 2023, Mr Kite and his brother Tony were heavily involved in the Southern Swarm’s Marlborough-based methamphetamine dealing operation. The brothers lived in Blenheim. They were personally involved in dealing methamphetamine and in supplying other Swarm members who sold methamphetamine to customers. In discussion with an undercover Police officer, Mr Kite said he was in charge of the Blenheim cohort of the Swarm, which had around five or six members.
[4] Mr Kite pleaded guilty on the basis of a summary of facts which recorded that he had supplied 109 grams of methamphetamine over the four-month period covered by the charge. That figure arose from a series of specific transactions Police were able to identify, though the Crown asserted, in its submissions opposing Mr Kite’s appeal, that the scale of the dealing operation was likely to be far more significant. Mr Kite’s sentence reflected the drugs he supplied personally and his membership of a wider criminal enterprise which was engaged in commercial dealing.
Procedural history
[5] Mr Kite was arrested when the undercover operation terminated at the beginning of December 2023. He initially faced eleven charges, including conspiracy to supply methamphetamine and multiple individual charges of supply. He was given bail on 12 December 2023.
[6] Mr Kite sought a sentence indication, which was given on the basis that the number of charges would be reduced from eleven to three. While the new summary emphasised Mr Kite’s important role in managing the Marlborough operation and in meeting regularly with his street-level dealer to ensure he was well supplied, the Crown agreed the dealing charge could proceed on the basis that Mr Kite personally sold 109 grams.
[7] The Judge indicated she regarded Mr Kite’s role as “significant” as that term is used by the Court of Appeal in R v Zhang.5 She indicated she proposed a global starting point of six years’ imprisonment, and that she would apply a full reduction of 25 per cent if Mr Kite pleaded guilty. The Judge reserved any further reductions, to reflect personal mitigating factors, for sentencing.
[8]Mr Kite accepted the sentence indication.
District Court Sentencing
[9]Joel and Tony Kite were sentenced together. The Judge described their roles:
[14] … I consider your roles were similar, was an operational function, that you were acting together, mainly for financial advantage, in circumstances where you were both aware of the scale of the wider operation of the distribution of methamphetamine that the Killer Beez Swarm in the South Island was involved in, and that you were each personally receiving the benefit of the rewards from the distribution of the drug, as well as using proceeds to further your involvement in spending time with other members of the Killer Beez.
[10] The Judge observed that in the time since his arrest Mr Kite had re-evaluated his life and reconnected with his Māori culture.6 He described having reflected on his experiences and his own appalling upbringing, and expressed his determination to offer his children something different. He also described a commitment to receiving psychological assistance, and alcohol and drug treatment.7
[11] The Judge adopted the six-year starting point she had indicated and reduced it by 25 per cent to reflect Mr Kite’s guilty plea, though she described that discount as generous given the time that had passed since Mr Kite was charged.8
[12] The Judge applied a number of additional reductions. She received reports detailing Mr Kite’s exceptionally disadvantaged childhood, which included domestic abuse, gang culture, failure at school because of undiagnosed attention deficit hyperactivity disorder and dyslexia, and, perhaps most significantly, numerous
5 R v Zhang [2019] NZCA 507, [2019] 3 NZLR 648 at [126].
6 Decision under appeal, above n 4, at [28].
7 At [22].
8 At [16].
placements in state residential care where he was systematically abused.9 In recognition of that background, the Judge reduced his sentence by another ten per cent.10 She reduced it by a further five per cent to reflect the fact Mr Kite’s imprisonment will be very difficult for his young family.11 He has five children aged between three and 15.
[13] The Judge’s reductions totalled 40 per cent. She then reduced the sentence by a further four months to reflect the fact Mr Kite had spent around 16 months on electronically monitored bail. That calculation led to the final sentence of 39 months, or three years and three months’ imprisonment.12 The Judge imposed a concurrent sentence of one year’s imprisonment on the charge of participation in an organised criminal group, and a concurrent one month sentence on the charge of failing to comply with his search obligations.
The appeal
[14] Ms Riddell, on behalf of Mr Kite, acknowledged the six-year starting point selected by the Judge was available to her, though she argued, given Mr Kite was sentenced on the basis he had sold only 109 grams of methamphetamine, that it was near the top of the available range.
[15] Ms Riddell submitted the Judge did not extend sufficient credit to reflect Mr Kite’s exceptionally disadvantaged upbringing, and in particular the systematic abuse he experienced when in state care. Those factors blighted Mr Kite’s life from a very young age and led him into the Killer Beez and a life of criminal offending. Ms Riddell noted that reductions of 15 per cent to reflect an offender’s disadvantaged background are common, and that the deprivation Mr Kite experienced was extreme. She submitted he should have received a reduction of at least 20 per cent. Importantly, Mr Kite has expressed a firm commitment to disassociate himself from the Killer Beez and engage in rehabilitation.
9 At [21] and [23]–[24].
10 At [25].
11 At [26].
12 At [29].
[16] Ms Riddell submitted the Judge also extended insufficient credit to reflect the effect Mr Kite’s imprisonment will have on his family. His partner suffers from a hereditary eye condition and has limited vision. She now has sole care of Mr Kite’s five children. Ms Riddell submitted the effect of Mr Kite’s absence from the family will be acute in light of his partner’s disability. She argued the Judge should have discounted the sentence by a further five per cent to reflect the hardship the family will inevitably endure.
[17] Finally, Ms Riddell submitted the four-month discount for the 16 months Mr Kite spent on restrictive bail conditions was inadequate; she submitted a fair reduction would have been twice that.
[18] If Mr Kite were to receive all the additional reductions Ms Riddell sought, the six-year starting point would have been largely consumed by discounts. In oral argument she was more pragmatic. Ms Riddell recognised that sentencing is not a scientific exercise. The Court’s task is always to stand back and assess whether the process of uplifts and reductions produces a sentence which fairly reflects the unique circumstances of the offence and the offender.13 Ms Riddell submitted, however it is constructed, that a final sentence of two years and nine months’ imprisonment would have been appropriate.
Discussion
[19] The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed if only a sentence was manifestly excessive, represented an error of principle, or if there are exceptional circumstances.14
[20] My focus is on the final sentence the Judge imposed. It does not particularly matter how she constructed it as long as the final sentence was reasonably available.15
13 McCaslin-Whitehead v R [2023] NZCA 259 at [61]–[62].
14 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [33]–[39].
15 Mita v R [2012] NZCA 137 at [28].
If the same outcome could have been reached by a different route, the sentence will not be manifestly excessive. An appellate Judge should always allow “a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science”.16
[21] I agree the six-year starting point adopted by the Judge was squarely within the available range. In Zhang, the Court of Appeal confirmed that dealing in quantities of between 5 and 250 grams of methamphetamine will usually attract a starting point of between two and nine years’ imprisonment. Six year starting points are common for dealing in quantities of between 100 and 200 grams.17 Mr Kite was dealing on a commercial basis and the transactions he personally conducted took place in the context of his membership of an organised criminal group.
[22] I agree with the Judge that the 25 per cent discount to reflect Mr Kite’s guilty plea was generous. The plea was far from prompt; indeed, there is an element of incongruity in the fact Mr Kite also seeks a reduction to reflect the fact he spent 16 months on restrictive bail conditions. A smaller discount — perhaps between 15 and 20 per cent — would have been open to the Judge.
[23] At the same time, I am satisfied the Judge extended insufficient credit to Mr Kite in two respects. First, while it is all too common for defendants to have had a harrowing upbringing, the deprivation Mr Kite experienced was extreme.
[24] Mr Kite’s father was a gang member who physically abused him from the age of six or seven. Mr Kite was first placed in state care at the age of nine, where he was subjected to appalling physical and emotional abuse. He quickly began abusing substances to numb the pain. A report prepared under s 27 of the Sentencing Act 2002 recorded that each successive state care placement was worse than the last. I will not detail the abuse Mr Kite suffered, but the report rightly described it as horrific.
[25] Mr Kite met his partner when he was 15 years old and they had their first child shortly afterwards. He turned to gang membership to help him support his young
16 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
17 See Roulston v R [2020] NZCA 255 at [36]-[37], McRae v R [2022] NZHC 1581 at [73].
family due to the difficulties he experienced in finding stable employment. At the same time, he said he believed the gang environment was “non-judgmental and helped him fight the pain.”
[26] The reports indicate Mr Kite has now made a determined decision to sever his ties with the Killer Beez. Ms Riddell advised that he endured a serious beating in custody when he made it clear he no longer wished to associate with the gang. The reports indicate he may remain at risk of retribution after his release from prison.
[27] Mr Kite accepts he has a range of rehabilitative needs. He will require counselling, psychotherapy and an addiction treatment programme. Nonetheless, the clinicians who interviewed him report he is engaged and committed, and that there is every reason to be optimistic about his prospects.
[28] It follows that Mr Kite’s case is unusual in two respects. I am satisfied, even by the standards of hardship the Court has become used to, that the abuse he experienced was exceptional. It is little wonder he was drawn to the Killer Beez, with its sense of community and promise of financial security; indeed, there is a well-recognised link between abuse in care and gang membership.18 In addition, I am satisfied Mr Kite’s prospects of rehabilitation are unusually good. He has taken the courageous step of renouncing his gang affiliation, and that factor alone deserves credit.
[29] In those circumstances, I agree with Ms Riddell that this is one of those rare cases where the defendant’s personal history and commitment to rehabilitation required a reduction of no less than 20 per cent.
[30] Second, I agree that Mr Kite’s family circumstances warrant an additional reduction. Mr O’Donoghue, on behalf of the Crown, fairly acknowledged that Mr Kite’s partially-sighted partner will find his imprisonment especially difficult, as will his five children. Again, Mr Kite’s circumstances are unusual and warrant a
18 Royal Commission of Inquiry into Abuse in Care Whanaketia – Through pain and trauma, from darkness to light: Part 5 Impacts (June 2024) at [88].
greater reduction than might normally be given. I agree with Ms Riddell that a ten per cent reduction would have been fair.
[31] Bearing in mind my conclusion that Mr Kite was fortunate to receive a 25 per cent reduction in recognition of his guilty plea, I consider an additional net reduction of between five and ten per cent would have been appropriate.19 Standing back and considering the sentence in the round, I agree with Ms Riddell that a final sentence of two years and nine months’ imprisonment will properly reflect both the seriousness of Mr Kite’s offending and his unusually compelling personal mitigating factors.
Result
[32] The appeal is allowed. The sentence of three years and three months’ imprisonment on the charge of supplying methamphetamine is quashed. Mr Kite is sentenced to two years and nine months’ imprisonment on that charge. The shorter concurrent sentences on the other charges are unchanged.
Boldt J
19 From a six-year starting point, a five per cent reduction is around three and a half months, and a ten per cent reduction is just over seven.
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