Kite v The Queen - [2020] NZHC 427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-496

[2020] NZHC 427

BETWEEN
CAEZAR PETER KITE

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 February 2020

Counsel:

J W Mackey for appellant M Davie for respondent

Judgment:

6 March 2020

JUDGMENT OF KATZ J

[Appeal against sentence]

This judgment was delivered by me on 6 March 2020 at 4:00 pm

Registrar/Deputy Registrar

Solicitors: Crown Law Office, Wellington Counsel: J W Mackey, Barrister, Auckland

KITE v R [2020] NZHC 427 [6 March 2020]

Introduction

[1]Caezar Kite pleaded guilty to:

(a)a representative charge of receiving stolen property; and

(b)a charge for possession of a class C drug for supply.1

[2] He was sentenced by Judge P J Sinclair to six months’ community detention, 150 hours of community service, and a twelve-month supervision order. He now appeals that sentence. The key issues raised by his appeal are:

(a)whether the Judge’s starting point was excessive, and

(b)whether the Judge intended to give a lower sentence but failed to do so due to an arithmetical error in the sentencing process.

Facts

[3] Mr Kite’s wife engaged in an extensive fraud which involved her ordering large quantities of stock from NZ Post (to the value of $537,732.55) which she did not pay for. She on-sold those items to third parties.

[4] The summary of facts does not elaborate on the precise nature of Mr Kite’s involvement, but simply records (following a description of his wife’s offending) that:

Receiving stolen property (Kite only)

As a result of the above, the defendant Caezar Kite received stolen goods from NZ Post to the value of $50,000.

[5] Mr Kite also arranged to purchase 225 grams of cannabis from someone he had contacted on Facebook for $2,000. During the transaction he discovered that the supposed cannabis plant was actually grass clippings. Mr Kite retrieved his cash after a short struggle and flagged down a passing marked police vehicle. His vehicle was searched and approximately 29 grams of cannabis plant head material was located,

1 R v Haerewa and Kite [2019] NZDC 22427.

divided into nine snap lock bags, together with a small electronic scale. Mr Kite admitted intending to sell that cannabis.

District Court sentencing

[6] In respect of the receiving offending, the Judge referred to Hurland v Police2 and R v Lasike,3 noting the observation of the Court in Lasike that in cases where receiving involves a low level of sophistication and commerciality, but the receivers have a close relationship with the burglars, specific property is targeted and the amounts received are between $15,000 and $50,000, starting points tend to be between three and four years’ imprisonment.4 Against this background, her Honour stated that:5
Your offending was not particularly sophisticated or commercial in nature and relates to a single charge. However, you did receive a substantial amount of property. It was on-sold for profit, reflecting on element of commerciality, and you had a close relationship with Ms Fraser-Haerewa…

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 The Queen

Details

AGLC: Kite v The Queen [2020] NZHC 427
Case: [2020] NZHC 427
Decision Date: 6 March 2020

CaseChat Overview and Summary

The appeal against sentence was heard by Katz J in the High Court of New Zealand. Caezar Kite, the appellant, challenged his sentence for receiving stolen property and possession of a class C drug for supply, arguing that the starting point was excessive and that the Judge intended a lower sentence due to an arithmetical error in the sentencing process. The appellant was sentenced to six months’ community detention, 150 hours of community service, and a twelve-month supervision order. The appeal raised two main issues: whether the Judge's starting point was excessive, and whether the Judge intended a lower sentence due to an arithmetical error.

The Court found that the starting point of 15 months for receiving stolen property was within the appropriate range, given the facts of the case and the lack of a tariff case for receiving offending. The Court rejected the argument that the quantum for sentencing purposes should be only $25,000, not $50,000, as the appellant had pleaded guilty to the summary of facts that stated he had received goods of $50,000. The Court also found that the Judge intended the final sentence of six months’ community detention, and that this was not impacted by the arithmetical error earlier in the process. The Court considered that the sentence imposed was a fairly lenient and compassionate one, reflecting the appellant's youth, lack of criminal history, rehabilitative prospects, and parenting responsibilities.

The appeal was dismissed, and the original sentence was upheld.

Orders